STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PRISCILLA P. WILLIAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3168

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

The above matter came before the undersigned after the parties waived their right to a final hearing and submitted the matter for decision based upon a stipulation of facts and memoranda of law. The parties were represented as follows:

APPEARANCES

For Petitioner: Edgar Lee Elzie, Esquire

P. O. Box 82

Tallahassee, Florida 32302

For Respondent: Burton M. Michaels, Esquire

Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUES

The issue is whether certain fees received by petitioner between January 1973 and February 1990 constitute "compensation" and thus should be included in her average final compensation for determining her state retirement benefits.

PRELIMINARY STATEMENT

This matter began on March 14, 1991, when respondent, Department of Administration, Division of Retirement (Division), issued a letter advising petitioner, Priscilla P. Williams, the former official court reporter for Gadsden County, that her request to increase her retirement benefits had been denied. On May 15, 1991, petitioner filed an amended petition for hearing to contest the agency decision. In brief, petitioner contended that fees received from the county for preparing transcripts of criminal proceedings during her period of employment constituted compensation for retirement purposes and should have been included in the calculation of her retirement benefits. The matter was referred by respondent to the Division of Administrative Hearings on May 21, 1991, with a request that a Hearing Officer be assigned to conduct a hearing.

By notice of hearing dated June 5, 1991, a final hearing was scheduled on August 7, 1991, in Tallahassee, Florida. On August 1, 1991, the case was transferred

from Hearing Officer William F. Quattlebaum to the undersigned. Thereafter, at petitioner's request the matter was temporarily abated until the parties agreed to have the matter rescheduled to April 2 and 3, 1992, at the same location.

The parties then agreed to waive a formal hearing and in lieu thereof submit a stipulated record and proposed recommended orders in support of their respective positions. The stipulated record was filed on March 30, 1992, and proposed recommended orders were filed by respondent and petitioner on April 27 and May 1, 1992, respectively. The record consists of six exhibits attached to the parties' prehearing stipulation.

FINDINGS OF FACT

Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined:

1. From January 1973 through February 1990, petitioner, Priscilla P. Williams, was the official court reporter in the Second Judicial Circuit of Florida in and for the Circuit and County Courts of Gadsden County, Florida. As such, she was an employee of the Office of State Courts Administrator for the State of Florida and Gadsden County (County).

   
   

2. During the time petitioner served as the official court reporter, she was furnished with office space, furnishings, equipment, telephone, parking permit, and insurance by the County. She was also identified in the County's records as a salaried employee who filled a regularly established position. This is confirmed by copies of a state personal history record (form FRS-M10), loyalty oath, and application for service retirement (form FR-11) which are a part of this record, and the fact that her position was an employment position that was in existence for a period beyond six consecutive months.

   
   

3. While serving as official court reporter, petitioner received payments from salary accounts pursuant to Section 29.04, Florida Statutes, from both the State and County. That statute provides for an annual salary to be paid to each official circuit court reporter. It also provides that the burden of paying this salary should be shared by the State and County. These payments are reflected in her State and County wage and tax withholding statements (W-2's). In calculating petitioner's retirement benefits, respondent, Department of Administration, Division of Retirement (Division), used only the payments reflected in the W-2's.

   
   

4. In addition to the foregoing payments, during the period between January 1973 and February 1990 petitioner received payments from the County for services enumerated in Sections 29.03 and 29.05, Florida Statutes. These services were personally rendered by her as official court reporter and included the preparation of transcripts of criminal proceedings at the request of the presiding judge, state attorney, or public defender. The amount of fees received and the month in which such fees were paid are set forth on pages 4 through 8 of the amended petition, which has been incorporated into and made a part of this record. These payments range from no fees in some months to as much as $7,152 in October 1984. The payments were reported to the Internal Revenue Service (IRS) as miscellaneous income on Form 1099's issued by the County. However, the payments were not included in the calculation of petitioner's retirement benefits, and their exclusion by the Division has precipitated this controversy.

   
   

5. The State and County Officers and Employees Retirement System is one of a number of retirement systems that was succeeded by the Florida Retirement

   System in December 1970 and has been administered by the Division since the Division's creation in 1969. In administering both systems for retirement purposes, the Division has included as either "salary" or "compensation" those fees set by statute but only where such fees have been the sole source of the salary or compensation of the officer or employee during any given period of time. In other words, the Division will treat as compensation the fixed monthly salary of an employee or the total cash remuneration from fees set by statute, but not both. Under this practice, then, petitioner's annual salary was treated as compensation for retirement purposes while the fees for transcribing criminal proceedings were not.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1991).

   
   

7. Petitioner bears the burden of proving her entitlement to the increased retirements benefits by the preponderance of the evidence. Wilson v. Department of Administration, Division of Retirement, 538 So.2d 139, 142 (Fla. 4th DCA 1989).

   
   

8. As noted in the findings, petitioner received a salary and fees under three statutes during her tenure as official court reporter. She was paid an annual salary pursuant to Section 29.04, Florida Statutes, she received "compensation for services" in the form of "fees" under Section 29.03, Florida Statutes, for attending each civil and criminal proceeding and for transcribing criminal proceedings, and she was paid certain "fees" under Section 29.05, Florida Statutes, for preparing transcripts in criminal cases upon the request of the presiding judge, state attorney or defendant. It is the fees for transcription of criminal proceedings that are in issue here. In this regard, the parties have cited no agency final order or appellate decision which deals squarely with this issue. To resolve this issue, it is necessary to analyze Subsection 121.021(22), Florida Statutes (1991), which defines compensation for retirement purposes, and various Division rules which affect retirement benefits. In doing so, the undersigned recognizes the general principle that pension laws, including those contained in chapter 121, should be liberally construed in favor of the participant. City of West Palm Beach v. Holaday, 234 So.2d 24, 26 (Fla. 4th DCA 1970).

   
   

9. Under Subsection 121.021(24), Florida Statutes (1991), an employee retired from a regularly established position with state or local government is entitled to have his or her retirement benefits calculated using "the average annual compensation of the five best years of creditable service prior to retirement, termination, or death." In this regard, a regularly established position with local government (county) is defined in Rule 22B-6.001(49), Florida Administrative Code, as "an employment position which will be in existence for a period beyond 6 consecutive months." At the same time, Rule 22B-1.004(4)(b)1., Florida Administrative Code, provides in part that "a member filling a regularly established position who performs additional duties for the same employer is considered to be filling a regularly established position for the total employment". It is also noted that under Rule 22B-6.001(6)(b)1., Florida Administrative Code, "compensation paid to professional persons for special or particular services" is excluded from the calculation of average annual compensation. This exclusion is also found in Rule 22B-6.001(16)(b), Florida Administrative Code. The term compensation is defined in relevant part in Subsection 121.021(22), Florida Statutes (1991) as follows:

   (22) 'Compensation' means the monthly salary paid a member, including overtime payments paid from a salary fund, as reported by the employer on the wage and tax statement (Internal Revenue Service form W-2) or any similar form. When a member's compensation is derived from fees set by statute, compensation shall be the total cash remuneration received from such fees. Under no circumstances shall compensation include fees paid professional persons for special or particular services.

   
   

   Finally, Rule 22B-6.001(6), Florida Administrative Code, defines compensation to mean the total gross monthly salary paid a member including, among other things, "cash remuneration received for fees set by statute."

   
   

10. To support her position, petitioner generally contends that all remuneration received under chapter 29 qualifies as compensation within the meaning of subsection 121.021(22) since it was either salary or fees set by statute. She also argues that in defining compensation as fees and salary, the legislature did not intend that if one of the two forms of compensation was used to calculate retirement benefits, the other would be excluded. Finally, she points out that the preparation of transcripts was an additional duty performed by her while filling a regularly established County position, and under rule

    22B-1.004(4)(b)1., those fees should be considered a part of her overall compensation. In brief, the Division responds that the fees received by petitioner from the County fail to qualify as compensation under subsection 121.021(22) for several reasons. First, the fees were reported on a form 1099 and not on a W-2, second, petitioner was a full-time employee of the state and thus did not fill a regularly established position of the county, third, petitioner is a "professional person" who was paid fees for special or particular services, and fourth, the statute itself provides that either fees and salary may be used to compute average annual compensation for retirement purposes, but not both.

11. The operative language in subsection 121.021(22) reads as follows: Compensation means the monthly salary paid a member,

    including overtime payments paid from a salary fund, as

    reported by the employer on the wage and tax statement (Internal Revenue Service form W-2) or any similar form. When a member's compensation is derived from fees set by statute, compensation shall be the total cash remuneration received from such fees.

    
    

    This language is plain and unambiguous. It provides that compensation includes both "the monthly salary paid a member, including overtime payments paid from a salary fund" and "fees set by statute." In the same manner, compensation is defined in rule 22B-6.001(16)(a)5. to include not only salary but also "cash remuneration received for fees set by statute". Under both the statute and rule, the types of compensation are not exclusive of one another. Where the language of the statute is clear and unambiguous and conveys a clear and definite meaning, as it is and does here, there is no occasion for resorting to the rules of statutory interpretation and construction. The statute must be given its plain and obvious meaning. Holly v. Auld, 450 So.2d 217, 219 (Fla.

    1984). Thus, salary and fees received by petitioner while performing her duties as official court reporter should have been used in calculating her retirement

    benefits. By "delving beneath the obvious language of the (statute) to unearth evidence of 'intent' and 'purpose' when there was no necessity to do so", and construing the statute to mean that salary or fees could be used to calculate the benefits, but not both, the Division was in error. Kingsley v. Department of Insurance and Treasurer, 535 So.2d 604, 605 (Fla. 2nd DCA 1988). Because the statute clearly contemplates that both salary and fees should be used in calculating retirement benefits, petitioner's amended petition should be granted.

    
    

12. In reaching the above conclusion, the undersigned has considered respondent's contention that because the fees were not reported on a W-2 form, they cannot be treated as compensation under subsection 121.021(22). This contention is rejected because the statute merely requires that salary or fees be reported on "Internal Revenue Service Form W-2 or similar form." Since the statute does not limit the reporting form to a W-2, and a form 1099 is a "similar form" for reporting income to the IRS, remuneration reported on a form 1099 may qualify as compensation. The undersigned has also considered and rejected the contention that petitioner's remuneration for transcribing criminal proceedings constituted "fees paid to professional persons for special or particular services" within the meaning of the last sentence of subsection 121.021(22). In so doing, the undersigned deems irrelevant to a resolution of this question the issue of whether a court reporter is a "professional person". This is because a court reporter is required by law to report and transcribe criminal proceedings, and it is illogical to characterize the transcribing of a criminal proceeding as a "special or particular service" while labeling the reporting of the identical proceeding as something else. Indeed, the statute does not contemplate such a distinction. The undersigned has also considered respondent's contention that its interpretation of subsection 121.021(22) should be accorded great weight unless shown to be clearly erroneous. While admittedly this principle is well-settled in law, it has no application here where resorting to rules of statutory construction is unnecessary. Finally, the Division has argued that petitioner was not filling a regularly established position with the County while serving as the official court reporter. This contention is deemed to be unavailing since the evidence of record reflects that petitioner was a full-time employee of the County and filled a regularly established position within the meaning of rule 22B-6.001(49).

    
    

13. In summary, subsection 121.021(22) does not forbid the inclusion of both salary and fees set by statute in the calculation of a member's retirement benefits. Accordingly, petitioner's request should be granted and the Division should include within the calculation of her retirement benefits those fees received by her for transcribing criminal proceedings.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent enter a final order approving petitioner's request for additional retirement benefits by including in the calculation of average final compensation those fees received by petitioner between January 1973 and February 1990 as set forth on pages 4 through 8 of her amended petition.

RECOMMENDED this 24th day of June, 1992, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this day of June, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3168

Petitioner:

1. Accepted in finding of fact 1.

2. Accepted in finding of fact 2. 3-4. Accepted in finding of fact 3. 5-6. Accepted in finding of fact 4.

7. Accepted in finding of fact 5. 8-11. Accepted in finding of fact 3.

Respondent:

1. Accepted in finding of fact 1.

2. Covered in preliminary statement and in finding of fact 2. 3-4. Accepted in finding of fact 3.

5-6. Accepted in finding of fact 4.

7. Accepted in finding of fact 5.

COPIES FURNISHED:

A. J. McMullian, III, Director Division of Retirement

Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, FL 32399-1560

John A. Pieno, Secretary Department of Administration

435 Carlton Building Tallahassee, FL 32399-1500

Edgar Lee Elzie, Esquire

P. O. Box 82 Tallahassee, FL 32302

Burton M. Michaels, Esquire

Cedars Executive Center, Building C 2630 North Monroe Street

Tallahassee, FL 32399-1560

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS: All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF MANAGEMENT SERVICES

DIVISION OF RETIREMENT

PRISCILLA WILLIAMS, )

)

Petitioner, )

)

1. ) Division of Retirement

   ) Case No. DR91-08 DEPARTMENT OF MANAGEMENT SERVICES, ) (DOAH Case No. 91-3168) DIVISION OF RETIREMENT, )

   )

   Respondent. )

   )

   
   

   FINAL ORDER

   
   

   On June 24, 1992, the duly appointed Hearing Officer of the Division of Administrative Hearings in the above-styled and numbered cause, completed and submitted to the Division of Retirement of the Department of Administration (now the Department of Management Services) and to all parties in this cause, a Recommended Order. A copy of that Recommended Order is attached hereto as EXHIBIT "A".

   
   

   Pursuant to Rule 28-5.404, Florida Administrative Code, and Section 120.57(1)(b)8, Florida Statutes, the parties were allowed twenty (20) days within which to submit written exceptions to that Recommended Order. Neither the Petitioner nor the Respondent submitted any written exceptions. Pursuant to Section 120.57(1)(b), Florida Statutes, that Recommended Order came before the undersigned Director of the Division of Retirement, as agency head, for final agency action and for a final agency order in this cause.

   
   

   By PREHEARING STIPULATION dated and filed March 30, 1992, the parties stipulated and agreed that this case be heard on that Stipulation and the Exhibits attached thereto in lieu of formal hearing. The PRELIMINARY STATEMENT

   herein and the FINDINGS OF FACT herein are quoted verbatim from that PREHEARING STIPULATION.

   ISSUE

   
   

   The sole issue in this cause is whether or not the payments received from Gadsden County by Petitioner, as set forth on pages 4 through 8 of her Amended Petition, for services rendered as Official Court Reporter pursuant to Chapter 29, Florida Statutes, constitute "compensation" within the meaning of that term in Chapter 121, Florida Statutes.

   
   

   PRELIMINARY STATEMENT

   
   

   [Appearing on pages 1 through 4 of the PREHEARING STIPULATION dated and filed March 30, 1992]

   
   

   Under Section 121.021(22), Florida Statutes, the term "compensation" is defined as follows:

   
   

   "(22) `Compensation' means the monthly salary paid a member, including overtime payments paid from a salary fund, as reported by the employer on the wage and tax statement (Internal Revenue Service form W-2) or any similar form. When a member's compensation is derived from fees set by statute, compensation shall be the total cash remuneration received from such fees. Under no circumstances shall compensation include fees paid professional persons for special or particular services. . .

   
   

   It is the position of the Respondent that the fees in question did not constitute compensation within the meaning of that term in Section 121.021(22) in that the payment of those fees did not constitute any monthly salary paid a member, and did not include any overtime payments paid from a salary fund, as reported by any employer on the wage and tax statement (Internal Revenue Service Form W-2) or any similar form. It is the position of the Respondent that such fees constituted contract payments paid to the Petitioner for special or particular services which were paid from an expense account of the Board of County Commissioners of Gadsden County, Florida. It is further the position of the Respondent that the Petitioner was an employee of the State of Florida in her position as official court reporter for the Gadsden County Circuit Court and that she was not an employee of the Board of County Commissioners of Gadsden County, Florida. The Petitioner therefore held a regularly established position only with the State of Florida and the salary supplements paid by the Board of County Commissioners of Gadsden County were for that State position.

   
   

   It is the position of the Petitioner that the fees in question having been set by statute qualify such fees to be compensation under the above-quoted second sentence.

   
   

   It is the position of the Respondent that said second sentence makes reference only to those situations where all of a member's total compensation is derived from fees set by statute, and from no other source. Further, it is the position of the Respondent that the third sentence prohibiting the inclusion of fees paid professional persons for special or particular services would disqualify the fees received by the Petitioner. The Respondent submits that the definition of compensation in Section 121.021(22), Florida Statutes, covering the Florida Retirement System since December 1, 1970, was derived from the

   definition of "salary" contained in the old State and County Officers and Employees Retirement System, Chapter 122, Florida Statutes, wherein the term "salary" is defined in Section 122.02(3), Florida Statutes, as follows:

   
   

   "(3) 'Salary' shall mean the fixed monthly compensation paid officers and employees, and where officers' or employees' compensation is derived from fees set by statute, salary shall be the total cash remuneration received from such fees. Under no circumstances shall salary include fees paid professional persons for special or particular services."

   
   

   The State and County Officers and Employees' Retirement System is one of a number of retirement systems that was succeeded by the Florida Retirement System in December 1970, and has been administered by the Division of Retirement since the creation of the Division in 1969. In administering both systems the Division has included as either salary or compensation for retirement purposes in either system, fees set by statute only where such fees have been the sole source of the salary or compensation of the officer or employee during any given period of time. It is the position of the Division that the language in Section 122.02(3), Florida Statutes, clearly delineates the "either-or" concept which the Division has followed in administering the law as to both systems.

   
   

   It is the position of Petitioner that all payments she received from Gadsden County and the State of Florida were compensation for her services as Official Court Reporter pursuant to Chapter 29, Florida Statutes, and therefore should be included in the calculation of her retirement benefits under Chapter 121, Florida Statutes.

   
   

   RULINGS ON HEARING OFFICER'S RECOMMENDED FINDINGS OF FACT

   
   

   Inasmuch as this case was submitted to the Hearing Officer on the stipulated facts on pages 5 through 7 of the PREHEARING STIPULATION dated and filed March 30, 1992, the recommended Findings of Fact of the Hearing Officer should have been limited to those stipulated facts -- and none other.

   Therefore, recommended Findings of Fact Numbers 1, 2, 3, 4, and 5 of the Recommended Order are hereby rejected to the extent that they depart from the said stipulated facts inasmuch as such "additional" recommended Findings of Fact of the Hearing Officer would not be based on competent substantial evidence -- the only evidence in this cause being such stipulated facts.

   
   

   1. The first sentence of recommended Finding of Fact No. 1 is hereby accepted, and the statement that the Petitioner was an employee of the Office of State Courts Administrator for the State of Florida in the second sentence is hereby accepted, but the conclusion that she was an employee of Gadsden County is hereby rejected as being a conclusion that is not supported by competent substantial evidence. The conclusion that the Petitioner was an employee of Gadsden County is an erroneous conclusion of law, upon the authority of Section 29.01, Florida Statutes, and Matter of Compensation of Hunter, 635 P.2d 1371 (Or. App., 1981), as more fully discussed in the rulings on the Hearing Officer's recommended Conclusion of Law No. 4, below.

      
      

   2. The first sentence of recommended Finding of Fact No. 2 is hereby accepted. In the second sentence, the statement that: "She was also identified

      in the County's records as a salaried employee . . .", is hereby accepted, but the phrase: "who filled a regularly established position.", is hereby rejected in that it is not supported by competent substantial evidence, and was not stipulated to in the PREHEARING STIPULATION. The third sentence is hereby rejected in that it is a conclusion of law and is not supported by competent substantial evidence inasmuch as the position held by the Petitioner was as an employee of the judicial branch of the State of Florida.

      
      

   3. With the exception of the third sentence of recommended Finding of Fact No. 3, the remainder of that recommended Finding of Fact is hereby accepted.

      The third sentence is hereby rejected in that Section 29.04, Florida Statutes, makes provision for the State of Florida to pay an annual salary to an official court reporter, but there is no statutory language that the burden of paying such salary shall be shared by the State and County. In fact, Rule 2.070, Florida Rules of Judicial Administration, specifically provides that such salary is to be paid by the State of Florida as provided by law.

      
      

   4. Recommended Finding of Fact No. 4 is hereby accepted.

      
      

   5. Recommended Finding of Fact No. 5 is hereby accepted.

FINDINGS OF FACT

[Appearing on pages 5 through 7 of the PREHEARING STIPULATION dated and filed March 30, 1992]

1. From January 1973 through February 1990, Petitioner was the Official Court Reporter in the Second Judicial Circuit of Florida for the Circuit and County Courts of Gadsden County, Florida.

   
   

2. During the time Petitioner served as an Official Court Reporter she was furnished office space, furnishings, equipment, telephone, parking permit and insurance by Gadsden County and was identified in the records of Gadsden County as a salaried employee. Exhibit 1 attached to the Prehearing Stipulation is a copy of Petitioner's FRS-M10 on file with both the Board of County Commissioners of Gadsden County and the State Division of Retirement; Exhibit 2 attached to the Prehearing Stipulation is a copy of Petitioner's FRS-M10 on file with the State Division of Retirement and the State Court Administrator's Office; Exhibit

   3 attached to the Prehearing Stipulation is a copy of Petitioner's Loyalty Oath as an employee of Board of County Commissioners of Gadsden County, Florida, filed with the Board of County Commissioners of Gadsden County; Exhibit 4 attached to the Prehearing Stipulation is a copy of Petitioner's Loyalty Oath as an employee of the State of Florida, Second Judicial Circuit, filed with the State Court Administrator's Office; Exhibit 5 attached to the Prehearing Stipulation is a copy of Petitioner's Form FR-11 certified by the Board of County Commissioners of Gadsden County, Florida, and filed with the Division of Retirement; Exhibit 6 attached to the Prehearing Stipulation is a copy of Petitioner's Form FR-11 certified by the Chief Judge of the Second Judicial Circuit and filed with the Florida Division of Retirement.

   
   

3. During the time Petitioner served as Official Court Reporter, she received payments pursuant to Chapter 29 from both the State of Florida and Gadsden County from salary accounts as reflected in her W-2's from both Gadsden County and the State.

   
   

4. The Respondent calculated Petitioner's retirement benefits based on the payments Petitioner received from Gadsden County as Official Court Reporter as

   reflected in Gadsden County's W-2's, and based on payments she received from the State of Florida as Official Court Reporter reflected in State of Florida W-2`s.

   
   

5. During the time Petitioner served as Official Court Reporter, she received payments from Gadsden County reflected by 1099's for services enumerated in Chapter 29 personally rendered by her as Official Court Reporter pursuant to that Chapter, but those payments were not included in the calculation of her retirement benefits by the Division of Retirement.

   
   

6. The payments Petitioner received from Gadsden County reflected by such 1099's, which were not included by the Division of Retirement in the calculation of her retirement benefits, are enumerated on pages 4-8 of her Amended Petition.

   
   

7. The State and County Officers and Employees Retirement System is one of a number of retirement systems that was succeeded by the Florida Retirement System in December 1970, and has been administered by the Division of Retirement since the creation of the Division in 1969. In administering both systems the Division has included as either "salary" or "compensation" for retirement purposes in either system, fees set by statute only where such fees have been the sole source of the "salary" or "compensation" of the officer or employee during any given period of time.

RULINGS ON PROPOSED FINDINGS OF FACT

On April 27 and May 1, 1992, respectively, the Respondent and the Petitioner submitted to the Hearing Officer their Proposed Recommended Orders including proposed Findings of Fact. In the Appendix to Recommended Order, the Hearing Officer submitted recommended rulings thereon. The following constitutes the rulings in this Final Order on those proposed Findings of Fact.

The Petitioner's and Respondent's proposed Findings of Fact Nos. 1, 2, 3, 4, 5, 6, and 7, are hereby accepted and adopted in that they track the stipulated facts contained in the PREHEARING STIPULATION dated and filed March 30, 1992.

The Petitioner's proposed Findings of Fact Nos. 8, 9, 10, and 11, are hereby rejected in that they are conclusions of law and were not contained within the stipulated facts contained within the PREHEARING STIPULATION, and are, therefore, not based upon competent substantial evidence. The actual employment position held by the Petitioner as an employee of the judicial branch of the State of Florida is clearly identified on Florida Retirement System Form FR-11, which was executed by the Petitioner on January 24, 1990, and certified by the Chief Judge of the Second Judicial Circuit (Exhibit 6 attached to the PREHEARING STIPULATION), whereon the "Title of Position held" is stated to have been "Official Court Reporter, Second Judicial Circuit of Florida assigned to Gadsden County." The supplemental salary that was paid to the Petitioner by the County required paper work identifying her as a county employee for payroll purposes only; but, as a matter of law, she held her State position as an official court reporter solely at the pleasure of the Judges of the Second Judicial Circuit pursuant to Section 29.01, Florida Statutes. In the Conclusions of Law in this Final Order, this issue shall be fully analyzed.

RULINGS ON HEARING OFFICER'S RECOMMENDED CONCLUSIONS OF LAW

1. Recommended Conclusion of Law No. 1 is hereby accepted as a proper statement of applicable law.

2. Recommended Conclusion of Law No. 2 is hereby accepted as a correct statement of applicable law.

   
   

3. Recommended Conclusion of Law No. 3 is hereby rejected in that it erroneously concludes that the Petitioner's salary and fees were authorized and set by statute, when, they had to have been authorized and set pursuant to Rule 2.070, Florida Rules of Judicial Administration. The conclusion of the Hearing Officer is incorrect because under Rule 2.070, Florida Rules of Judicial Administration, the compensation of, and the fees in question to be charged by, court reporters are authorized and set by such judicial rule. Rule 2.070, Florida Rules of Judicial Administration, adopted generally by reference the annual salary for court reporters set forth in Section 29.04, Florida Statutes, for a 60-hour work month. That judicial rule then goes on to provide for overtime at the rate of $10.00 per hour. That Rule 2.070, Florida Rules of Judicial Administration, also provides that the fees in question (for transcripts and depositions) to be charged by court reporters should be set in each circuit by administrative order, and, in the absence of such order, as provided by law. Such court reporters' fees, therefore, are set pursuant to said judicial Rule 2.070, which authorizes the charging of such fees in accordance with a circuit administrative order, and, in its absence, as provided by law. The setting of such fees and the authorization to charge same arise from said judicial Rule 2.070, and not from Chapter 29, Florida Statutes. The fee schedule set forth in Chapter 29, Florida Statutes, derives its legal efficacy not from its legislative enactment alone, but from its judicial approval in said Rule 2.070 in the event that a local circuit administrative order setting such fees has not been entered. In such instance, the fees are not set by statute, but by judicial approval of a statutory fee schedule. The judicial branch has set such fees, not the legislative. Thus, any such fees were not set by statute.

   
   

4. The citations by the Hearing Officer in recommended Conclusion of Law No. 4 of Rules 22B-1.004(4)(b)1., and 22B-6.001(49), Florida Administrative Code, are rejected as being inapplicable to the proceeding at bar inasmuch as the Petitioner as an Official Court Reporter appointed pursuant to Section 29.01, Florida Statutes, was an employee of the State of Florida and was not an employee of Gadsden County. Under said Section 29.01 all official court reporters are appointed by and serve at the pleasure of the Chief Judge and a majority of the Judges of the Court in which the reporter is serving. Provision is made in Section 29.04, Florida Statutes, for the respective counties to provide funds necessary to pay the cost of reporting in criminal cases as necessary to provide competent reporters in such proceedings, but any such monies paid to such official court reporters would be paid to state employees. The judicial branch of government in Florida is a State court system. Official Court Reporters are hired and retained by the State Judges in a Circuit, and their employment is not determined or continued to any extent whatsoever by any Board of County Commissioners. Under Section 29.04(3), Florida Statutes, provision is made for the counties to supplement the funds necessary to pay the cost of reporting in criminal cases as necessary to provide competent reporters in such proceedings. The counties are a source of funding, and are not employers of the Official Court Reporters. In the case of Matter of Compensation of Hunter, 635 P.2d 1371 (Or. App. 1981), the Court of Appeals of Oregon held that where court reporters are appointed and hold their offices at the pleasure of the Judges, and are officers of the Court subject to the direction and control of the Judges, those court reporters are employees of the State of Oregon and not of the counties. At page 1373 of 635 P.2d the Court held:

   "The right to control is also important from a policy standpoint. The judges of the State of Oregon benefit directly from the services of the court reporters. They not only perform reporting duties in court, but are also the judges' official secretaries. See ORS 8.330. The State benefits most directly from court reporters' services, and it should be responsible for providing their workers' compensation insurance."

   
   

5. Recommended Conclusion of Law of No. 5 is hereby rejected as a conclusion of law in that is a recitation of the relative positions of the parties and is not of any recommended holding or ruling by the Hearing Officer.

   
   

6. Upon the reasoning and authorities set forth in Paragraph No. (3), above, recommended Conclusion of Law No. 6 is hereby rejected in that the fees in question were not authorized or set by legislative statute but were, in fact, authorized and set pursuant to judicial Rule 2.070, Florida Rules of Judicial Administration.

   
   

7. The first three sentences of recommended Conclusion of Law No. 7 are hereby rejected in that they misconstrue the first sentence of Section 121.021(22), Florida Statutes, that states:

   
   

   "`Compensation', means the monthly salary paid a member, including overtime payments paid from a salary fund, as reported by the employer on the wage and tax statement (Internal Revenue Service form

   W-2) or any similar form." [Emphasis supplied]

   
   

   A form 1099 is not a form on which an employer reports salary paid from a salary fund to an employee, but, rather is a form utilized to report payments of income to an independent contractor. The "similar form" in that statute refers to an employer's wage and tax statement, which may be a form W-2, which is not the equivalent to a form 1099. As hereinafter discussed in Conclusions of Law Nos. (11), (12), and (13) of this Final Order, Official Court Reporters are "professional persons" within the meaning of that term in Section 121.021(22), Florida Statutes. The recommended Conclusion of Law of the Hearing Officer that the transcribing of criminal proceedings do not constitute "special or particular services" does not comport with either judicial Rule 2.070, Florida Rules of Judicial Administration, or a 1957 Opinion of the Attorney General of Florida. Under said judicial Rule 2.070 the basic salary for a court reporter is set in subsection (g) together with provision for the payment of overtime for hours in excess of 60 worked per month. In subsection (e) of Rule 2.070, provision is made for fees for what would constitute special or particular services by a court reporter, and the fees that may be charged for same. In a 1957 Opinion of the Attorney General of Florida (1957 0p. Att'y. Gen. Fla. 057-

   109 (April 26, 1957)), the Attorney General of Florida analyzed Section 122.02, Florida Statutes, the predecessor to Section 121.021(22), Florida Statutes, as to what constituted compensation under the State and County Officers and Employees Retirement System (SCOERS). The opinion of the Attorney General was

   that hourly wages plus overtime would be included within the monthly compensation. But, at the end of that opinion the Attorney General concluded:

   
   

   "We conclude that in the case mentioned in the question the employing authority has prescribed the formula for fixing the monthly compensation or salary. It may vary depending upon the hours employed in discharging the routine work of the employment but the formula is fixed and applicable mathematically. This is not a situation where fees are paid for special or particular services. It is a regular retainer made depending upon the actual hours engaged in performing the month by month routine duties as School Board Attorney. It has no reference to fees for handing special items such as bond validation or other litigation."

   
   

   Under Rule 2.070, Florida Rules of Judicial Administration, official court reporters are paid their basic salary and overtime for their court appearances in reporting the proceedings. But, if they are to furnish transcripts of proceedings or depositions, which work would be done after their regular working hours, then the fees for such special or particular services are to be set by local circuit administrative order, or in the absence of same, as provided by law. These special or particular services that the court reporters are performing for such additional fees are not performed during their regular working hours, which by said Rule 2.070, is limited to 60 hours per month. And the last sentence of Recommended Conclusion of Law No. 7 that the Petitioner was a county employee is hereby rejected upon the grounds and reasoning set forth in Paragraph No. (4) above.

   
   

8. The Hearing Officer's Recommended Conclusion of Law No. 8 (misnumbered as "7") is hereby rejected upon the grounds and for the reasons set forth in Paragraph Nos. (3) through (7) set forth above.

CONCLUSIONS OF LAW

1. The Department of Management Services, Division of Retirement, has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   
   

2. Under Section 121.021(22), Florida Statutes, the term "compensation" is defined as follows:

   
   

   "(22) `Compensation' means the monthly salary paid a member, including overtime payments paid from a salary fund, as reported by the employer on the wage and tax statement (Internal Revenue Service form W-2) or any similar form. When a member's compensation is derived from fees set by statute, compensation shall be the total cash remuneration received from such fees. Under no circumstances shall compensation include fees paid professional persons for special or particular services. . .

   And the term "average final compensation" is defined in Section 121.021(24), Florida Statutes, to mean "the average annual compensation of the 5 best years of creditable service prior to retirement, termination, or death." Under the provisions of Section 121.091, Florida Statutes, the amount of the "average final compensation" is a critical factor in computing retirement benefits under Chapter 121, Florida Statutes, the Florida Retirement System (FRS). The determination as to whether the fee payments in question constitute "compensation" within the meaning of that term under Chapter 121, Florida Statutes, will therefore determine whether or not they should be included in such computation of benefits. In making this determination the definition of "compensation" in Section 121.021(22), Florida Statutes, set forth above must be analyzed.

   
   

3. The fee payments that the Petitioner received from Gadsden County as described in Findings of Fact Numbers (5) and (6) did not constitute any monthly salary paid a member, and did not include any overtime payments paid from a salary fund, as reported by any employer on the wage and tax statement (Internal Revenue Service Form W-2) or any similar form. The fee payments in question would not, therefore, qualify as "compensation" under the first sentence of its definition in Section 121.021(22), Florida Statutes.

   
   

4. It is the position of the Petitioner that the fee payments in question, having been set by statute, qualified such fees to be compensation under the above-quoted second sentence in the definition of "compensation" in Section 121.021(22), Florida Statutes. This position of the Petitioner is untenable because under Rule 2.070, Florida Rules of Judicial Administration, the fees in question to be charged by court reporters are to be set in each circuit by administrative order, and, in the absence of such order, as provided by law.

   The setting of such fees and the authorization to charge same are derived from said judicial Rule 2.070, and not under Chapter 29, Florida Statutes. The fee schedule set forth in Chapter 29, Florida Statutes, derives its legal efficacy not from its legislative enactment, but from judicial approval in said Rule

   2.070 in the event that a local circuit administrative order setting such fees has not been entered.

   
   

5. As set forth in Finding of Fact Number (7), in administering both the State and County Officers and Employees Retirement System (SCOERS) and the Florida Retirement System (FRS), the Respondent has included as either "salary" or "compensation" for retirement purposes in either system, fees set by statute only where such fees have been the sole source of the "salary" or "compensation" of the officer or employee during any given period of time. In reaching such conclusion the Respondent has construed the relevant sections of Chapters 121 (FRS) and 122 (SCOERS), Florida Statutes, as follows.

   
   

6. The definition of "compensation" in Section 121.021(22), Florida Statutes, covering the Florida Retirement System (FRS) since December 1, 1970, was derived from the definition of "salary" contained in the old State and County Officers and Employees Retirement System (SCOERS), Chapter 122, Florida Statutes, wherein the term "salary" is defined in Section 122.02(3), Florida Statutes, as follows:

   
   

   "(3) `Salary' shall mean the fixed monthly compensation paid officers and employees, and where officers' or employees' compensation is derived from fees set by statute, salary shall be the total cash

   remuneration received from such fees. Under no circumstances shall salary include fees paid professional persons for special or particular services."

   
   

   The SCOERS is one of a number of retirement systems that was succeeded by the FRS in December 1970 and has been administered by the Division of Retirement since the creation of the Division in 1969. In administering both systems, the Division has included as either salary or compensation for retirement purposes in either system, fees set by statute only where such fees have been the sole source of the "salary" (SCOERS) or "compensation" (FRS) of the officer or employee during any given period of time in accordance with the language in Section 121.021(22), Florida Statutes, (FRS) as it evolved from Section 122.02(3), Florida Statutes (SCOERS).

   
   

7. The construction of a statute by an agency charged with its administration is entitled to great weight and will not be overturned unless clearly erroneous. Grady v. Department of Professional Regulation, 402 So.2d 438, 440 (Fla. 3d DCA 1981); Fort Pierce Utilities v. Florida Public Service Commission, 388 So.2d 1031 (Fla. 1980); State ex rel. Biscayne Kennel Club v. Board of Business Regulation, 276 So.2d 823 (Fla. 1973); Baeza v. Pan American/National Airlines, Inc., 392 So.2d 920 (Fla. 3d DCA 1980); Morgan v. Kearney, 395 So.2d 570 (Fla. 4th DCA 1981). Under the provisions of Chapter 121, Florida Statutes, the Division of Retirement of the Department of Administration is charged with the duty to administer the provisions of the FRS, Chapter 121, Florida Statutes. (Sections 121.011, 121.021, 121.025, 121.031, 121.045, and 121.30, Florida Statutes.) The law is well settled in Florida that an agency's interpretation of the laws applicable to its operation are given great weight and must be sustained, unless clearly erroneous even if other individuals may reasonably hold an interpretation of the statute contra to that taken by the agency. Public Employees Relations Commission v. Dade County Police Benevolent Association, 467 So.2d 987 (Fla. 1985), and Florida School for the Deaf and the Blind v. Florida School for the Deaf and the Blind, Teachers United FTP-NEA, 483 So.2d 58 (Fla. 1st DCA 1986).

   
   

8. The clear language in Section 122.02(3), Florida Statutes, defines "salary" for the SCOERS to be either the fixed monthly compensation or the total cash remuneration from fees set by statute -- not both. This same "either-or" concept was carried forward into the definition of "compensation" under the FRS in the first two sentences of Section 121.021(22), Florida Statutes. Furthermore, in both Section 121.022 and Section 122.03, Florida Statutes, the statutory language did not state that the "fees set by statute" constituted the "compensation" or "salary", respectively, for the FRS and the SCOERS, but such "compensation" or "salary" is "derived from fees set by statute". In Webster's New Collegiate Dictionary (1974) the word "derived", is defined to mean "to take or receive esp. from a specified source" and in both Section 121.021(22) and in Section 122.02(3), Florida Statutes, the "compensation" and "salary", respectively, "shall be the total cash remuneration received from such fees".

   In Webster's New Collegiate Dictionary (1974), the word "remuneration" is a synonym of the word "pay".

   
   

9. In Section 28.24(1), Florida Statutes (1959), the Florida Legislature expressly provided that:

   "(1) The compensation of the clerk of the circuit court, as clerk or recorder, shall be entirely by fees and, unless otherwise provided, shall be as follows:

   
   

   ". . . ."

   
   

   A detailed fee schedule for recording, certifying, photocopying, etc., was then set forth. This is but one example where an officer's or employee's compensation was at one time derived from fees set by statute. As stated in the statutory language, those fees were the sole source from which a clerk of the circuit court, as clerk or recorder, could claim compensation.

   
   

10. It is fundamental in statutory construction that when the language of a statute is plain and unambiguous then the courts may not depart from the plain language employed by the Legislature. 49 Fla.Jur.2d, Statutes, Section 121, pp.

160 et seq. The plain and clear language in the second sentence of Section 121.021(22), Florida Statutes, is limited to "[w]hen a member's compensation is derived from fees set by statute. . . ." [Emphasis supplied]. The language in the second sentence of Section 121.021(22), Florida Statutes, clearly was intended to cover the situation illustrated by the compensation of a clerk of the circuit court, as clerk or recorder, being derived "entirely" from fees set by statute as provided in Section 28.24(1), Florida Statutes (1959). As held in Conclusion of Law No. (4), above, the fees that the Petitioner received for transcripts were not "set by statute", but, were authorized and set pursuant to judicial rule--Rule 2.070, Florida Rules of Judicial Administration. But, even-

-for the sake of argument--that such fees were set by Chapter 29, Florida Statutes, the reasoning and authorities cited above in Conclusions of Law Nos.

1. through (9) stand for the proposition that inasmuch as the Petitioner received a salary in her position as official court reporter, her "compensation" for the purposes of Chapter 121, Florida Statutes, was derived from that source only because the second sentence of Section 121.021(22), Florida Statutes, applies only where such fees set by statute are the sole source of income for the officers and employees. That second sentence is now archaic as it applied to the State and County fee officers of days gone by.

   
   

   1. The clear language of the first sentence of Section 121.021(22), Florida Statutes, defining "compensation" limits that term to mean the salary paid a member including overtime payments paid from a salary fund as reported by the employer to the Internal Revenue Service. But, the second sentence of Section 121.021(22) has recognized that there are those situations wherein "a member's compensation is derived from fees set by statute". In such instances, the second sentence of Section 121.021(22) provides that "compensation shall be the total cash remuneration received from such fees". The third sentence of Section 121.021(22) then goes on to exclude from the definition "fees paid professional persons for special or particular services". Rule 22B-6.001(6), Florida Administrative Code, defines the term "average final compensation", and then provides in Paragraph (b):

      
      

      "(b) The average final compensation shall not include:

      
      

      "1. Compensation paid to professional persons for special or particular services.

      
      

      ". . . .

      Rule 22B-6.001(16), Florida Administrative Code, defines the term "compensation" or "gross compensation" and provides in part:

      
      

      "(16) COMPENSATION OR GROSS COMPENSATION --

      
      

      "(a) Compensation means the total gross monthly salary paid a member, including:

      
      

      ". . . .""

      
      

      "5. Cash remuneration received for fees set by statute.

      
      

      "(b) Compensation shall not include any bonuses or other payments prohibited from inclusion in the member's average final compensation and defined in

      22B-6.001(6)(b)."

      
      

      Under the above statutory and rule sections, it is clear that the only payments received by the Petitioner for her services as Official Court Reporter that should be included within her "compensation" and "average final compensation" within the meaning of those terms under the FRS law, Chapter 121, Florida Statutes, would be the salary payments that she received from the State of Florida and from Gadsden County which were included in the calculation of her retirement benefits by the Division of Retirement. The payments that she received for fees constituted "fees paid to a professional person for special or particular services" and would be excluded from her "compensation" and her "average final compensation" under the FRS.

      
      

   2. The payments received by the Petitioner from Gadsden County as enumerated on pages 4 through 8 of her Amended Petition for the services described on page 3 thereof, did not constitute "compensation" for the purposes of computing retirement benefits under the FRS laws, and such payments were to be excluded therefrom pursuant to the provisions of the third sentence of the definition of "compensation" in Section 121.021(22), Florida Statutes, which expressly provides:

      
      

      " . . . Under no circumstances shall compensation include fees paid professional persons for special or particular services. "

      
      

      Consequently, it is hereby held that the payments received by the Petitioner as enumerated on pages 4 through 8 of her Amended Petition, for the services described on page 3 thereof, constituted "fees paid a professional person for special or particular services" and shall not be included in the computation of her retirement benefits for the following reasons and upon the following authorities of law.

      
      

   3. Official Court Reporters are "professional persons" within the meaning of that term in the third sentence of Section 121.021(22), Florida Statutes. In Chapter 65-326, Laws of Florida, the Florida Legislature expressly recognized and defined the practice of shorthand court reporting to be a profession. Section 2 of Chapter 65-326, Laws of Florida, provided in part:

      
      

      "Section 2. Definitions. --

      "1. Shorthand reporting means the making by means of written symbols or abbreviations in shorthand or machine writing a verbatim record of the spoken word.

      
      

      "2. Shorthand reporter means any person who is engaged in the practice of shorthand reporting as a profession as defined in subsection (1).

      
      

      ". . . . "

      
      

      Chapter 65-326, Laws of Florida, was codified in Official Florida Statutes as Sections 457.011 through 457.16, Florida Statutes (1965). Those sections of Chapter 457, Florida Statutes, as amended, last appeared in Official Florida Statutes (1977) wherein it is noted that they were repealed by Chapter 76-168, Laws of Florida, effective July 1, 1978. Section 29.025, Florida Statutes, currently provides for the Supreme Court of Florida to establish minimum standards and procedures for qualification, certification, discipline, and training for court reporters, but to date that section has not been implemented by the Supreme Court of Florida. The payments that the Petitioner received from Gadsden County enumerated on pages 4 through 8 of her Amended Petition were "fees paid a professional person for special or particular services." These payments were for services rendered as an Official Court Reporter in transcribing testimony and closing arguments in criminal and grand-jury proceedings and furnishing typewritten transcripts of these proceedings upon oral or written order of the presiding Judge, or at the request of the State Attorney or Public Defender. These special or particular services involving the transcribing of proceedings and depositions are like the special or particular services of attorneys described at the end of a 1957 Opinion of the Attorney General of Florida (1957 Op. Att'y Gen. Fla. 057-109 (April 26, 1957)) quoted above on page 15. Such fee payments for special or particular services, therefore, did not constitute compensation within the meaning of that term in Section 121.021(22), Florida Statutes, which excludes same from its definition. As set forth in Findings of Fact Numbers (3) and (4), the Petitioner was given full credit for the salary payments that she received from the salary accounts of both the State of Florida and Gadsden County as reflected in her W-2's in the calculation of her retirement benefits. None of her salary payments for services as an Official Court Reporter is included in any of the fee payments itemized on pages 4 through 8 of her Amended Petition.

      
      

   4. The payments that the Petitioner received from Gadsden County as enumerated on pages 4 through 8 of her Amended Petition do not constitute "compensation" within the meaning of that term in Section 121.021(22), Florida Statutes, because they were not salary payments received for work performed in a regularly established position, but were fees paid for special or particular services by a non-employer of the Petitioner. Section 121.021(12), Florida Statutes, provides in part:

      
      

      "(12) `Member' means any officer or employee who is covered or who becomes covered under this system in accordance with this chapter. "

      
      

      Section 121.021(11), Florida Statutes, defines "officer or employee" as follows:

      "(11) `Officer or employee' means any person receiving salary payments for work performed in a regularly established position and, if employed by a city or special district, employed in a covered group."

      
      

      Under the provisions of Chapter 29, Florida Statutes, and upon the reasoning in Matter of Compensation of Hunter, 635 P.2d 1371 (Or. App. 1981), the Petitioner was an employee of the State of Florida in her position as an Official Court Reporter. Under Section 29.01, Florida Statutes, the Petitioner was appointed by the Chief Judge of the Circuit with the approval of a majority of the Circuit Judges and County Court Judges, and she thereafter served at the pleasure of the Chief Judge and the majority of the judges of the courts in which she served.

      Under Rule 2.070, Florida Rules of Judicial Administration, and Section 29.04(1), Florida Statutes, provision has been made for an Official Circuit Court Reporter to "receive an annual salary of $5,400, unless otherwise provided for in the appropriations act, payable in 12 equal monthly installments by the [State] Treasurer upon requisition of such court reporter. . . . ." Section 29.04(3), Florida Statutes, states:

      
      

      "(3) The funds necessary to pay the cost of reporting in criminal proceedings shall be supplemented by the respective counties as necessary to provide competent reporters in such proceedings."

      
      

      The Petitioner clearly held her employment as a State employee as a result of her appointment by State judges and the retention of that employment at the pleasure of such State judges pursuant to Section 29.01, Florida Statutes. As an employee of the State of Florida, provision has been made for the counties to supplement the amounts being paid to court reporters as necessary to provide competent reporters in criminal proceedings. Section 29.04(3), Florida Statutes, does not create any employer-employee relationship between any county and an Official Court Reporter serving in the Circuit and County Courts in that county. In administering the provisions of Chapter 121, Florida Statutes, the Division of Retirement has included salary payments paid from salary accounts of both the State of Florida and Gadsden County as reflected in W-2's in calculating the Petitioner's retirement benefits. In administering the law in this fashion, the Division of Retirement has adhered to the statutory definition of "compensation" as meaning the monthly salary paid a member, including overtime payments paid from the salary fund, as reported by the employer on the wage and tax statement (Internal Revenue Service Form W-2) or any similar form. Though technically an Official Court Reporter is not an employee of a county government, this construction of the law including such salary payments would be consistent with the concept that the county is supplementing the State annual salary by such salary payments being made on behalf of the State of Florida.

      However, the fee payments enumerated on pages 4 through 8 of the Amended Petition, for the services described in page 3 thereof, were not salary payments from an employer and would not otherwise qualify as "compensation" within the meaning of that term in Section 121.021(22), Florida Statutes.

      
      

      ORDER

      
      

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

      ORDERED AND DIRECTED that relief sought in the Amended Petition of the Petitioner, Priscilla P. Williams, be and the same is hereby DENIED. And it is,

      
      

      FURTHER ORDERED AND DIRECTED that the payments received by the Petitioner as enumerated on pages 4 through 8 of her Amended Petition do not constitute "compensation", and are not to be included in her "average final compensation", within the meaning of those terms in Section 121.021(22), (24), Florida Statutes, and, therefore, those payments are not to be included in the computation of her retirement benefits under Chapter 121, Florida Statutes.

      
      

      DONE AND ORDERED this 21st day of September, 1992, in Tallahassee, Florida.

      
      

      
      

      1. J. McMULLIAN III

State Retirement Director Division of Retirement

Cedars Executive Center, Bldg. "C' 2639 North Monroe Street Tallahassee, Florida 32399-0950

(904) 487-1230

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 DESCRIBED 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.

CLERK'S CERTIFICATE

I HEREBY CERTIFY that this Final Order was filed with the Clerk of the Division of Retirement on this 21st day of September, 1992. And on this same date, copies were furnished to the following as noted respectively: Edgar Lee Elzie, Esquire, 210 South Monroe Street, Post Office Box 82, Tallahassee, Florida 32302 (by certified mail with return receipt requested); Burton M. Michaels, Esquire, Assistant Division Attorney, Division of Retirement, Cedars Executive Center, Building C, 2639 North Monroe Street, Tallahassee, Florida 33299-0950; Donald R. Alexander, Hearing Officer, and the Clerk of the Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 (by hand delivery to each).

BETTY ANN LEDFORD, CLERK

Division of Retirement Cedars Executive Center Building C

2639 North Monroe Street Tallahassee, Florida 32399-0950

Docket for Case No: 91-003168

Orders for Case No: 91-003168