STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GRADY JOHNSON )

)

Petitioner, )

)

vs. ) CASE NO. 92-3033

)

DIVISION OF RETIREMENT )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on September 17, 1991, in Naples, Florida.

APPEARANCES

For Petitioner: Donald P. Day, Esq.

Courtland Plaza, Suite 309 2500 Airport Road South Naples, Florida 33962

For Respondent: Larry D. Scott, Esq.

Division of Retirement

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

STATEMENT OF THE ISSUE

Whether the Petitioner is eligible for special risk/high hazard credit for his employment by the Collier County Sheriff's Department from February 1970 to September 1971.

PRELIMINARY STATEMENT

By certified letter dated April 21, 1992, Grady Johnson was notified that his request for credit for special risk/high hazard service under Sections 121.0515 and 122.34, Florida Statutes, was denied. The letter notified Mr.

Johnson of his right to request an administrative hearing. By Petition dated May 7, 1992, Mr. Johnson requested that the matter be forwarded to the Division of Administrative Hearings for further proceedings. The case was referred to the Division which scheduled and noticed the hearing.

At hearing, Petitioner presented the testimony of Aubrey Rogers, James Decker, Jackie Kline, Jackie Gant, and Gary Young, and testified on his own behalf. Respondent presented the testimony of John Rogers, Conrad Beaird, Steven Horrom, Dorothy McMann and Ira Gaines, and had exhibits numbered 1-4 admitted.

A transcript of the hearing was filed. Both parties filed proposed recommended orders. The proposed findings of fact are ruled upon as set forth in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. On February 11, 1970, Petitioner Grady Johnson ("Petitioner") became employed by the Collier County Sheriff's Department as a radio operator.

   
   

2. In his position as a radio operator, the Petitioner was responsible for communications between the Collier County Sheriffs Office and road patrol officers.

   
   

3. During the period of time the Petitioner was employed as a radio operator, he generally worked the shift from approximately 3:00 p.m. to 11:00 p.m., occasionally worked the 11:00 p.m. to 8:00 a.m. shift and infrequently worked the 8:00 a.m. to 3:00 p.m. shift.

   
   

4. As the radio operator, the Petitioner's primary responsibilities were to operate the radio communications system for the Sheriff's Department. Petitioner was not a full-time Deputy Sheriff and did not perform the duties of a full-time criminal law enforcement officer.

   
   

5. During various evening hours, the Petitioner, as the radio operator, was the sole county employee on the detention premises. On occasion the radio operator would assist in the physical restraint of a prisoner pending the arrival of deputies, however, such duties were not required on a full-time basis and were not a part of the Petitioner's primary responsibilities.

   
   

6. The radio operator was not required to assist in admitting prisoners to the detention facility on a regular basis. Admission forms were generally completed by an arresting officer. The newly-admitted prisoner was generally escorted to a cell by a "turn-key" (another prisoner who was apparently trusted by authorities to handle such tasks). If assistance was required by the turn- key, it was generally provided by the arresting officer.

   
   

7. Upon becoming employed as a radio operator by the Collier County Sheriff's Department, the Petitioner was enrolled as a member of the State and County Officers and Employees' Retirement System, (commonly referred to as the "SCORES" system.)

   
   

8. The SCORES system provided a "high hazard" classification for certified law enforcement personnel. During the relevant time at issue in this proceeding, the Petitioner was not included within the "high hazard" category because he was not included within the "law enforcement officer" classification of the system. The Collier County Sheriff's Department did not certify the Petitioner as a "high hazard" employee under SCORES.

   
   

9. In December 1970, the Petitioner elected to enroll in the newly- established Florida Retirement System ("FRS").

   
   

10. The FRS included a category of "special risk" employees who are entitled to increased retirement credits. During the period of employment as a radio operator, the Collier County Sheriff's Office did not designate the

    Petitioner as a "special risk" employee and did not pay enhanced contributions into the retirement plan on his behalf.

    
    

11. On October 16, 1971, the Petitioner was promoted to a road patrol position within the Collier County Sheriff's Office, at which time, the Petitioner was certified by the employer as holding a "special risk" position.

    
    

12. The Respondent approved the Petitioner's enrollment in the special risk class in October 1971.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. The Petitioner has the burden to establish entitlement to either high hazard or special risk classification for retirement benefit purposes for the relevant period of time. Florida Department of Transportation v. JWC Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). In this case the burden has not been met.

    
    

15. Section 121.021(15), Florida Statutes, provides as follows:

    
    

    1. Until October 1, 1978, "special risk member" means any officer or employee whose application is approved by the administrator and who receives salary payments for work performed as a peace officer; law enforcement officer; policeman, highway patrolman; custodial employee at a correctional or detention facility; correctional agency employee whose duties and responsibilities

       involve direct contact with inmates, but excluding secretarial and clerical employees; fireman; or an employee in any other job in the field of law enforcement or fire protection if the duties of

       such person are certified as hazardous by his employer.

    2. Effective October 1, 1978 "special risk member" means a member of the Florida Retirement System who

       is designated as a special risk member by the division in accordance with s. 121.0515. Such member must

       be employed as a law enforcement officer, a firefighter, or a correctional officer and must meet certain other special criteria as set forth in s. 121.0515.

       
       

16. Pursuant to Section 121.0515(2)(c), Florida Statutes, an employee participating in the Florida Retirement System is eligible for special risk membership if the member is employed as a correctional officer (and is certified in compliance with other law) and who's "primary duties and responsibilities must be the custody, and physical restraint when necessary, of the prisoners or inmates within" the detention facility. In this case, the evidence fails to establish that, during his employment as a radio operator, the Petitioner's primary responsibilities included the custody, and physical restraint when necessary, of the inmates within the detention facility.

17. An FRS special risk member may purchase retirement credit for past service, but such service must satisfy the criteria set forth as Section 121.0515(2), Florida Statutes, (cited herein). The Petitioner's employment as a radio operator does not meet the criteria relevant to his employment.

    
    

18. The SCORES system is governed by Chapter 122, Florida Statutes. To be entitled to classification as "high hazard" duty under the SCORES program, the Petitioner must meet the requirements of Section 122.34, Florida Statutes, which provides as follows:

    
    

    1. In addition to sheriffs and full-time deputy sheriffs, the provisions of this section shall apply with respect to members who are officers and full-time employees of the state or the several counties of the state whose duties are

       to enforce the criminal laws of the state, except for those officers or full-time employees holding office or employed on or before July 1, 1963, who were then 55 years old or older and who elected in writing, and filed with the Comptroller within 90 days after July 1, 1963, their rejection to this section and except those officers or full-time employees, excluding present high hazard members,

       holding officer or employed on or before July 1, 1967, who are then 55 years old or older and who elect in writing, filed with the Comptroller within 90 days after July 1, 1967, to reject this section, and such members who do not so elect to reject this section hereinafter shall be referred to as "high Hazard" members.

    2. Only those members who are full-time criminal law enforcement officers or agents, as certified by the employing authority, who perform duties according to rule, order, or established custom as full-time criminal law enforcement officers or agents shall

       be certified to the division as high hazard members, and only such members shall be approved by the division.

       
       

19. Although on an irregular basis, the Petitioner was required to assist in the custody and physical restraint of the inmates within the jail, the evidence fails to establish that, during his employment as a radio operator, the Petitioner was employed as a sheriff or full-time deputy sheriff or that his duties were to enforce the criminal laws of the state.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered denying the Petitioner's application for high hazard or special risk membership in either SCORES or the FRS.

DONE and RECOMMENDED this 23rd day of December, 1992, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1992.

APPENDIX CASE NO. 92-3033

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact fail to comply with Rule 60Q- 2.031(3), Florida Administrative Code, which requires that proposed findings be supported by citations to the record. Although the Petitioner's proposed findings fail to set forth such citations, the Hearing Officer has reviewed the transcript and exhibits in order to set forth the following rulings.

Accordingly, the Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

1. Rejected, unnecessary.

   
   

2. Last sentence rejected, contrary to greater weight of credible and persuasive evidence which establishes that the Petitioner's primary responsibilities were as the radio operator.

5, 6. Rejected, unnecessary.

1. Rejected, not supported by credible and persuasive evidence. The greater weight of the evidence establishes that the Petitioner's primary responsibility was to operate the radio communications system linking the road deputies. Other responsibilities were secondary and were preformed on an irregular basis. "Booking" of prisoners was primarily handled by the arresting officer and "turn- key".

   
   

2. Rejected, contrary to the greater weight of the credible and persuasive evidence.

Respondent

The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order.

COPIES FURNISHED:

William H. Lindner, Secretary Knight Building, Suite 307 Koger Executive Center

2737 Centerview Drive

Tallahassee, Florida 32399-0950

Susan B. Kirkland

Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive

Tallahassee, FL 32399-0950

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

Cedars Executive Center, Bldg. C 2639 N. Monroe St.

Tallahassee, Florida 32399-1560

Donald P. Day, Esq. Courtland Plaza, Suite 309 2500 Airport Road South Naples, Florida 33962

Larry D. Scott, Esq. Division of Retirement

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency 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.

Docket for Case No: 92-003033

Orders for Case No: 92-003033