STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICK KRANK, )

)

Petitioner, )

)

vs. ) Case No. 99-0704

)

DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for a disputed fact hearing on May 19, 1999, in Gainesville, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bill Salmon, Esquire

Post Office Box 1095 Gainesville, Florida 32602

For Respondent: Emily Moore, Esquire

Division of Retirement Cedars Executive Center Building C

2639 North Monroe Street Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUES

1. Should Respondent Division of Retirement grant Petitioner's request to be included for retirement purposes in the Special Risk Class (SRC) from July 1, 1981 through

   October 24, 1985?

2. Should Respondent Division of Retirement grant Petitioner's request to be included in the Special Risk Administrative Support Class (SRASC) for the period October 25, 1985 until January 1, 1998?

PRELIMINARY STATEMENT

By a letter dated November 12, 1998, Respondent advised Petitioner that it was denying his request for inclusion in SRC and SRASC. Petitioner contested the denial, and the matter was referred to the Division of Administrative Hearings on or about February 17, 1999.

On May 17, 1999, Respondent filed, via FAX to Tallahassee, Florida, a single document, captioned "Motion to Dismiss and Motion for Hearing." However, it was not received by this Administrative Law Judge, who was already in Gainesville, Florida. When Respondent presented its Motion to Dismiss at the commencement of the disputed fact hearing on May 19, 1999, the Motion was marked "filed in open court" with the date. Following oral argument, the Motion to Dismiss was denied.

The parties' prehearing stipulation had been filed on

April 30, 1999. Paragraph (e) thereof, purportedly stated agreed admissions of fact, but it was partially retracted by Respondent in the course of argument on the Motion to Dismiss. Following argument, it appeared that the parties had never had a meeting of the minds on the subject, so all "disputed facts" listed in paragraphs (g) 1-3 were submitted to trial.

At the request of the parties, current Section 121.0515(2)(c) and Section 943.19, Florida Statutes (1981), and Rules 60S-1.0053 and 60S-1.0054(2), Florida Administrative Code, were officially recognized.

Petitioner testified on his own behalf.

Respondent's Motion to Dismiss was renewed at the close of Petitioner's case-in-chief and again was denied.

Respondent presented the oral testimony of Kim Baldry and David Ragsdale, Benefits Administrator for Respondent. Seventeen joint exhibits were admitted by stipulation. Petitioner's Exhibit 1, constituting two pages, was identical to Joint Exhibit 13, and so was never offered. Respondent's Exhibit 1 was admitted in evidence.

No transcript was provided.

At the conclusion of the disputed fact hearing, the parties agreed that proposed recommended orders would be filed within

15 days, or by June 3, 1999.

On June 2, 1999, Respondent filed an unopposed Motion for Extension of Time to File Proposed Recommended Order.

On June 8, 1999, Petitioner filed a Post-Trial Motion for Award of Attorney's Fees. On the same date, an Order extending the filing date for post-hearing proposals was entered.

On June 10, 1999, both parties filed their respective Proposed Recommended Orders. On June 15, 1999, Respondent filed

its Motion to Amend Proposed Recommended Order to indicate a reference to endnotes.

On June 22, 1999, Respondent filed its Response to Petitioner's Post-Trial Motion for Award of Attorney's Fees.

On June 23, 1999, an Order was entered granting Respondent's Motion to Amend its proposal. The same Order indicated that the issue of attorney's fees would be addressed in this Recommended Order.

FINDINGS OF FACT

1. At all times material, Alachua County employed a jail facility Director who had overall supervision of correctional officers and special risk employees and who was ultimately responsible for restraint of inmates.

2. Petitioner was continuously employed by the Alachua County Department of Corrections at the Alachua County Jail from the date of his initial employment as a Correctional

   Officer I on April 22, 1974, to his lay-off as Assistant Director of the Alachua County Jail on January 1, 1998.

3. Political opponents of Petitioner raised the issues of his eligibility for SRC and SRASC classification and the validity of his correctional officer certification beginning approximately in 1996.

4. Petitioner began work April 22, 1974, as a Correctional Officer I (uniformed line officer) and was recommended by his

   employer Alachua County and approved by Respondent for SRC membership, effective April 22, 1974.

5. Respondent reviews applications for SRC and SRASC for completeness with no audit beyond the certification by the member and the employer. Respondent may approve, retroactive to the date specified in the application. If at any time it is determined that a member is not eligible for inclusion in a particular retirement category, the member is removed, retroactive to the date of ineligibility.

6. Petitioner was certified as a correctional officer by the Council of Correctional Standards on July 1, 1974.

7. Petitioner was promoted to an Administrative Assistant I position, effective May 18, 1981. The Administrative Assistant I position did not require certification as a correctional officer.

8. On May 18, 1981, Petitioner was a certified correctional officer in a position that did not require certification.

9. Effective July 1, 1981, the Florida Legislature merged the Council of Correctional Standards, which had certified Petitioner on July 1, 1974, with the Law Enforcement Standards Council, to form the Criminal Justice Standards and Training Commission (CJSTC), an arm of the Florida Department of Law Enforcement (FDLE). In so doing, the Legislature provided Section 943.19(3), Florida Statutes, to "grandfather-in" certain correctional officers' certifications.

10. On July 1, 1981, Petitioner was a certified correctional officer in a position that did not require certification.

11. Sometime later in 1981, the newly-formed CJSTC requested that Alachua County send the CJSTC a list of all certified correctional officers in its employ. Such a list was prepared by Alachua County personnel and forwarded to the CJSTC. The list prepared by the County did not include Petitioner's name, presumably because at that time, as an Administrative Assistant I, he was not serving in a position requiring certification as a correctional officer.

12. Petitioner was promoted to the position of Administrative Operations Supervisor, effective March 22, 1982. This position also did not require correctional officer certification.

13. Although Petitioner was employed as an Administrative Assistant I beginning May 18, 1981, and as an Administrative Operations Supervisor beginning March 22, 1982, he did not make application for inclusion in SRASC until March 17, 1986.

14. On April 23, 1986, Alachua County recommended Petitioner's SRASC classification. Kim Baldry, Director of Personnel for Alachua County since 1983, signed off on a form stating that Petitioner:

    Was employed for training and/or career development . . . and is subject to reassignment at any time to a position qualifying for special risk membership.

15. Respondent approved Petitioner's SRASC membership retroactive to October 25, 1985.

16. Petitioner's November 13, 1987, application for inclusion in SRC as "Assistant Director/Administrative Support," was neither recommended by Alachua County, nor approved by Respondent.

17. In July 1994, the Administrative Operations Supervisor position was reclassified, without any change in job description or duties, as Assistant Director/Administrative Support, and Petitioner served in that capacity until his lay-off in 1998.

    The position never required a correctional officer certification.

    
    

18. Petitioner was not employed as a uniformed correctional officer from May 18, 1981, to his lay-off in 1998.

19. Petitioner did not hold a position for which the minimum requirements included certification as a correctional officer from May 18, 1981, until his lay-off in 1998.

20. Kim Baldry testified that although Petitioner had many job titles during his 1981 to 1998 employment, his actual duties from 1981 to 1998 were consistently over personnel, budget, and fiscal matters; that he primarily supervised fiscal assistants and accounting clerks; and that he was never a jail "supervisor" as such. She did, however, concede that she had dealt with him over correctional officer discipline from 1983 to 1998.

21. Petitioner and Ms. Baldry concurred that from 1981 to 1998, his duties remained basically the same, and that at various

    times, he was known as "Acting Assistant Director" and "Assistant Director" and when the Director was out of town, Petitioner served as "Acting Director."

22. Petitioner testified without refutation that from 1981 to 1998, his duties always included personnel oversight of line correctional officers; overseeing payroll leave and timecards for such officers; and screening, interviewing, and processing applications for new correctional officers. One of his job descriptions confirms this.

23. Petitioner also testified that he had daily contact with inmates of the Alachua County Jail in the commissary, medical services area, and food preparation area, and with trustees in support services, and that he regularly appeared before the County Commission concerning budget, jail crowding, and the need for more correctional officers.

24. Petitioner's daily primary duties and responsibilities after May 18, 1981, were neither the direct custody, nor the physical restraint, of prisoners or inmates at Alachua County Jail. His daily primary duties were fiscal, budgeting, accounting, and personnel administration in nature. He was not a line officer on the floor with special risk officers and inmates on a daily basis, although he did consult with some line and special risk correctional officers on personnel matters, including disciplinary matters. Actual discipline went through correctional officer captains and lieutenants.

25. Petitioner stated that when he was an Administrative Assistant I, he was subject to reassignment as a line correctional officer at any time and that when he was Administrative Operations Supervisor, there were two other supervisors who oversaw work release and jail supervision, respectively, on a day-to-day basis. At some point, one position was eliminated and one was assigned to the court system.

26. From 1994 to 1995, when Petitioner was Assistant Director, there was one other Assistant Director. Both Assistant Directors reported directly to the Director of Alachua County Jail, who had total oversight of the jail operation. However, when both the Director and the other Assistant Director were out of town, or later, when Petitioner was the sole Assistant Director, the Director delegated his duties to Petitioner for the interim, and Petitioner was left directly in charge of all functions, including security, supervision of correctional officers, and supervision of inmates.

27. When questions concerning his certification and retirement status arose in 1996, Respondent requested that Alachua County personnel look into the matter because he considered it to be his employer's problem and not his own.

28. Alachua County formally requested review by the Respondent of Petitioner's retirement designation, indicating that it did not believe that Petitioner should continue in SRC or

    SRASC, because he was serving the employer in an administrative capacity.

29. After considerable correspondence back and forth, FDLE, the agency that houses the CJSTC which has the responsibility and authority to certify correctional officers, advised Alachua County by a May 24, 1996, letter that:

    . . . A review of the files in the Division of Criminal Justice Standards and Training indicates that Mr. Krank was a certified correctional officer with the Corrections Council. That council was merged with the Law Enforcement Standards Council to form the Criminal Justice and Training Commission (CJSTC) in 1981. Officers employed in correctional officer positions were "grandfathered" into the CJSTC at that time.

    
    

    Mr. Krank was not employed as a correctional officer at the time of the merger, and, therefore, was not grandfathered into the CJSTC. It is suggested that if Mr. Krank requests more specific information concerning the grandfather clause in the statute, that he contact the State Department of Corrections. I have enclosed a copy of the 1983 Florida Statutes reference [sic] the "Saving Clause." However, it does not go into any detail as to what the process was at that time. (Joint Composite Exhibit 5) (Emphasis supplied.)

30. Respondent received a May 21, 1998, letter from FDLE, stating:

    After a thorough search of the Automated Training and Management System (ATMS2), historical databases, and records stored on microfiche, there is no record of Mr. Krank working as an officer in Florida.

    
    

    Citing Rule 11B-27.0026, Florida Administrative Code, first enacted in 1994, FDLE went on to say that it considered

    Petitioner to be a certified correctional officer separated from employment and not re-employed within four years after the last date of separation, who therefore needed to reactivate his certification. (Joint Exhibit 10). The undersigned's research shows that Rule 11B-27.0023, Florida Administrative Code, new in 1982, provided that a certified correctional officer separated from employment and not re-employed within four years must reactivate his or her certification and that Rule 11B-27.0026, Florida Administrative Code, cited in FDLE's letter, actually explains how to reactivate certification.

31. In reliance on FDLE correspondence, Respondent removed Petitioner from the SRC and SRASC classifications.

32. Subsequent to being laid-off by Alachua County in 1998, Petitioner accepted a job as a correctional officer trainee with the Florida State Prison on February 2, 1999.

33. Petitioner was hired as a correctional officer trainee at Florida State Prison, pending resolution of the instant case. Petitioner's arrangement with Florida State Prison personnel was that he would attend training from February 22, 1999, through May 25, 1999, after which he would have to pass a test administered by FDLE on June 29, 1999, in order to become a certified correctional officer and continue in the correctional officer position for which he had been hired.

    CONCLUSIONS OF LAW

    
    

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

    On the Merits

35. Herein, Petitioner bears the duty to go forward and the burden of proof by a preponderance of the evidence.

36. Respondent's post-hearing proposal concedes that if FDLE's determination of lack of certification were reversed, that reversal would require Respondent to grant SRC and SRASC to Petitioner as claimed. Although FDLE is not a party to this cause and the undersigned is not bound by either its determination nor the limited statutory and rule citations provided by the parties, FDLE's interpretation of the statutes and rules it administers and the Respondent's interpretation of the statutes and rules which Respondent administers are respectively entitled to great weight, and neither interpretation should be overturned unless clearly erroneous. Summersport Enterprises Ltd., v. Pari-Mutuel Commission, 493 So. 2d 1085 (Fla. 1st DCA 1986); Shell Harbor Group, Inc., v. Department of Business Regulation, 487 So. 2d 1141 (Fla. 1st DCA 1986).

37. Chapter 943, Florida Statutes (1981), provided, in pertinent part:

    Section 943.09, Division of Criminal Justice Standards and Training. - -

    1. There is created a Division of Criminal Justice Standards and Training in the Department of Law Enforcement.

       * * *

       
       

       Section 943.10 Definitions; ss. 943.085-

       943.255. - - The following words and phrases as used in ss. 943.085-943.255 shall have the following meanings unless the context otherwise requires:

       
       

       * * *

       
       

    2. "Correctional officer" means any person who is appointed or employed full time by the state or any political subdivision thereof whose primary responsibility is the supervision, protection, care, custody, and control of inmates within a correctional institution; however, the term "correctional officer" does not include any secretarial, clerical or professionally trained personnel. (Emphasis supplied.)

       * * *

       
       

       (4) "Commission" means the Criminal Justice Standards and Training Commission within the Department of Law Enforcement.

       
       

       * * *

       
       

       (11) "Basic employment certification" means that an individual has satisfied the requirements of this chapter and the rules promulgated thereunder and as such is authorized to be employed or appointed as a correctional officer or a law enforcement officer, part-time law enforcement officer, or auxiliary law enforcement officer.

       * * *

       
       

       Section 943.12 Special Powers; law enforcement and correctional officer training. - - In connection with the employment and training of law enforcement officers, part-time law enforcement officers, auxiliary law enforcement officers, and correctional officers, the commission in cooperation with the department, shall have special power to:

       (1) Establish uniform minimum standards for the employment and training of law enforcement officers and correctional

       
       

       officers in specifically designed programs in the various criminal justice disciplines, including standards with respect to parking enforcement specialists as described in s.

       316.640(3)(c) and including qualifications and requirements as may be established by the commission subject to specific provisions which are contained in this chapter.

       * * *

       
       

       (6) Issue certificates of competency to persons who, by reason of experience and completion of advanced education or inservice or specialized training, are especially qualified for particular aspects or disciplines of criminal justice.

       
       

       * * *

       
       

       Section 943.19 Saving clause. - -

       
       

       * * *

       
       

       (3) Correctional officers employed between July 1, 1976, and July 1, 1981, shall be required to meet the provisions of Section 943.12(1) within 180 days after July 1, 1981, as a condition of continued employment unless certified by the Correctional Standards Council prior to July 1, 1981. (Emphasis supplied.)

38. The statutory definition of "correctional officer" has remained essentially the same to date.

39. Section 943.145, Florida Statutes (1981),

    
    

    covers reasons and procedures for de-certifying correctional officers. None of its provisions is fully on point for this case, although read as a whole, the statute, like FDLE's current

    position, contemplates continued certification to be dependent upon continued employment as a correctional officer and that loss of correctional officer employment results in deactivation of correctional officer certification, requiring reactivation upon re-employment. It is not until 1993 that Section 943.139(1), Florida Statutes, provided:

    Separation from employment or appointment includes any firing, termination, resignation, retirement, or voluntary or involuntary extended leave of absence of any officer. (Emphasis supplied.)

    
    

40. An item in Section 943.145, Florida Statutes, (1981), that is of particular note for this case is contained in Subsection (8):

    Inactivation of certification is a ministerial act which occurs automatically upon notification of termination of employment. (Emphasis supplied.)

    
    

41. Section 121.0515(1), Florida Statutes, sets forth the legislative intent in creating SRC membership. It reads as follows:

    1. LEGISLATIVE INTENT. In creating the Special Risk Class of membership within the Florida Retirement System, it is the intent and purpose of the Legislature to recognize that persons employed in certain categories of law enforcement, firefighting, and criminal detention positions are required as one of the essential functions of their positions to perform work that is physically demanding or arduous, or work that requires extraordinary agility and mental acuity, and that such persons, because of diminishing physical and mental faculties, may find that they are not able, without risk to the health and safety of themselves, the public, or

       their co-workers, to continue performing such duties and thus enjoy the full career and retirement benefits enjoyed by persons employed in other positions and that, if they find it necessary, due to the physical and mental limitations of their age, to retire at an earlier age and usually with less service, they will suffer an economic deprivation therefrom. Therefore, as a means of recognizing the peculiar and special problems of this class of employees, it is the intent and purpose of the Legislature to establish a class of retirement membership that awards more retirement credit per year of service than that awarded to other employees; however, nothing contained herein shall require ineligibility for special risk membership upon reaching age 55.

42. The criteria for inclusion in SRC are contained in Section 121.0515(2)(c) Florida Statutes, as follows:

    (2) Criteria- A member, to be designated as a special risk member, must meet the following criteria:

    
    

    (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; provided, however, administrative support personnel, including, but not limited to, those whose primary duties and responsibilities are in accounting, purchasing, legal and personnel, shall not be included; however, superintendents and assistant superintendents shall participate in the Special Risk Class. (Emphasis supplied.)

43. SRASC membership is covered in Section 121.0515(7) Florida Statutes:

    1. A special risk member who is moved or reassigned to a nonspecial risk law enforcement, firefighting, or correctional administrative support position with the same agency, or who is subsequently employed in such a position with any law enforcement, firefighting, or correctional agency under the Florida Retirement System, shall earn credit for such service at the same percentage rate as that earned by a regular member. Notwithstanding the provisions of subsection (4), service in such an administrative support position shall, for purposes for s. 121.091, apply toward satisfaction of the special risk normal retirement date, as defined in s. 121.021(29)(c), provided that, while in such position, the member remains certified as a law enforcement officer, firefighter, or correctional officer; remains subject to reassignment at any time to a position qualifying for special risk membership; and completes an aggregate of 10 or more years of service as a designated special risk member prior to retirement. (Emphasis supplied.)

    2. Upon application by a member, the provisions of this subsection shall apply, with respect to such member, retroactively to October 1, 1978.

       
       

    3. The division shall adopt such rules as are required to administer this subsection.

    
    

44. Rule 60S-1.0053, Florida Administrative Code, governs SRC membership:

    60S-1.0053 Criteria for Special Risk Membership - - Correctional Officers.

    The criteria set forth below shall be used pursuant to Section 60S-1.005 in determining membership in the special risk class for members who are filling correctional officer positions, regardless of the title of such a position.

    1. Any member who seeks to be approved for special risk membership under this section must be certified or required to be certified as a correctional officer in compliance with the Criminal Justice Standards and Training Commission, as provided in Section 943.1395, F.S.

    2. Any member who seeks special risk membership must hold one of the following correctional officer positions:

       1. Correctional officer whose primary duty and responsibility is 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 or while being transported outside the facility.

       2. Command officer or supervisor of a special risk member or members holding a position as described in (2)(a) above.

       3. Superintendent or Assistant Superintendent (regardless of title) of a correction or detention facility where duly committed inmates are confined, housed, or maintained and where correctional officers are employed. Superintendent shall mean the person directly in charge of the day to day operations of a specific correction or detention facility. Assistant Superintendent shall mean the one person whose responsibilities include direct line authority from the Superintendent over all subordinate employees for the day to day operations at the facility. If no one employee in a corrections facility has such responsibility, then for retirement purposes there is no assistant superintendent at that facility, except that in large state institutions there may be more than one assistant superintendent if the institution is divided into units, each having an assistant superintendent with direct line authority from the superintendent over all subordinate employees for the day to day operations within the unit.

    3. No administrative support personnel,

       including but not limited to, those whose primary duties and responsibilities are in accounting, purchasing, legal, and personnel,

       shall be admitted to special risk membership. (Emphasis supplied.)

45. Rule 60S-1.0054(1) Florida Administrative Code, states the Legislature's intent at Section 121.0515(7), Florida Statutes, in creating the SRASC, as follows:

    1. INTENT -- In creating Special Risk Administrative Support Class within the Florida Retirement System, the Legislature recognizes that when special risk members are employed or reassigned for training, career development or to fill a critical agency need they often fail to meet the criteria for special risk membership. They are then placed in the regular class of membership thereby losing the earlier retirement date and 2 percent retirement service credit offered special risk members. While it is not the intent of the Legislature to continue to provide 2 percent retirement service credit for such members upon employment or reassignment to non-special risk positions, it is intended that such members who qualify for Special Risk Administrative Support Class membership and complete 10 years of special risk service shall be entitled to count such Special Risk Administrative Support Class service towards their special risk normal retirement date.

46. Rule 60S-1.0054(2), Florida Administrative Code, provides the requirements for inclusion in SRASC:

    1. Eligibility -- . . . , a member being reassigned or employed by an agency shall participate in the Special Risk Administrative Support Class if:

       
       

       1. The member is employed by an agency whose primary purpose is law enforcement, firefighting, or corrections, or if the employer has multiple responsibilities, the member must be employed by a unit of the agency whose primary purpose is law enforcement, firefighting, or corrections and

          
          

       2. The member is employed or reassigned by

          his employer to a non-special risk position which provides training and/or career development opportunities to the member, or fulfills a critical agency need; and

          
          

       3. The member has participated in The Special Risk Class; and

          
          

       4. The member remains certified by the appropriate authority; and

          
          

       5. The member is subject to reassignment at any time to a special risk position. (Emphasis supplied.)

    
    

47. Also of note is the following current FDLE

    
    

    Rule 11B-27.0023, Florida Administrative Code, first effective in any form in 1982, which provides in pertinent part:

    1. Maintenance. On or after July 1, 1985, each certified officer shall be required to receive periodic Commission-approved continuing training or education, at the rate of 40 hours every four (4) years as specified in the following paragraphs:

       1. For those officers initially certified on or before July 1, 1985, training shall be completed by June 30, 1989, and every four

          (4) years thereafter; and

       2. For those officers certified after July 1, 1985, the mandatory retraining deadline shall be June 30th following the officer's four (4) year anniversary date. Example

          Original Certification: November 21, 1987 Four Year Anniversary Date: November 21, 1991 Mandatory Retraining Deadline: June 30, 1992

       3. Training used to satisfy the mandatory retraining requirement shall be submitted by the employing agency to Commission staff by completing a Mandatory Retraining Report form CJSTC-74, revised October 27, 1998, hereby incorporated by reference. The information on the form CJSTC-74, may be electronically transmitted via the Commission's Automated Training Management System (ATMS2).

    * * *

    (f) In the event that an officer has failed to meet the requirements of Rule 11B- 27.0023(2), F.A.C., the certificate shall become inactive until the employing agency provides documentation to the Commission staff establishing that the continuing training or education requirements have been satisfied. Upon receipt and acceptance of the documentation by Commission staff, the officer's certificate shall be placed in an active status, and the agency shall be notified of the date of such action. (Emphasis supplied.)

    * * *

    
    

    (j) Any officer who has a lapse in service of under four (4) years, shall complete the mandatory retraining requirement prior to resuming active service with an agency. An officer who wishes to claim training as mandatory retraining, which was taken during a period when their certification was inactive, shall provide proof of the training to the prospective employing agency. The employing agency shall determine if the continuing training or education requirements have been satisfied, and shall complete and submit a Mandatory Retraining form CJSTC-74, and documents to Commission staff. (Emphasis supplied.)

48. The "facts" are clear that Petitioner was continuously employed with the same employer and therefore, continuously eligible for regular state retirement benefits, but Petitioner was not continuously employed as a "correctional officer," as that term has been consistently defined by statute.

49. The "law" is less clear. Although some of the applicable statutes seem to refer to mere employment and employment as a correctional officer interchangeably, FDLE's rules have established that inactivation of certification occurs

    automatically upon a lapse in service as a correctional officer or upon a failure to attain continuing educational credits within specified periods. Thus, I conclude that the thrust of Chapter 943, Florida Statutes, and the Florida Administrative Code rules promulgated by FDLE through the years hinge upon the concept that an employee must continue his/her correctional officer certification and simultaneously serve as a correctional officer, not that he or she must simply remain in continuous service with the same public employer and within the general population of the State Retirement System. Service as a correctional officer may be by any job title, but it must be service as a "correctional officer" as defined by statute, in order to maintain active correctional officer certification.

50. The facts are clear that Petitioner was a uniformed, certified line correctional officer from April 22, 1974, until May 18, 1981, seven years, and as such is entitled to SRC for that period. That period of time is not at issue.

51. Concerning Petitioner's claim of SRC for the period of July 1, 1981, through September 30, 1985, I have considered the following: Petitioner was still certified on July 1, 1981. Alachua County's failure to physically transmit his certification or job description/position to CJSTC is not controlling. The transmittal in itself was purely a ministerial act. Pursuant to Section 943.19(3), Florida Statutes, the saving clause of the 1981 statute, Petitioner would have

    remained certified, provided he continued acting as a corrections officer and providing that he maintained his continuing education credits. Because the certification is in the nature of a property right and the statute in 1981 was somewhat unclear as to the issue of "employment" or "employment as a correctional officer," any ambiguity towards retaining his certification should be resolved in Petitioner's favor. "On the cusp," as it were, of July 1, 1981, the rules did not clarify the status of "inactive" certifications; the statute considered inactive certifications to be purely ministerial; and the statutory saving clause did not make any distinction concerning active or inactive certification status. Therefore, I conclude that FDLE's determination that Petitioner's certification was not grandfathered-in is erroneous; that Petitioner's certification indeed carried over in 1981; and that whether Petitioner was thereafter entitled to SRC benefits depended upon the functions he was performing.

52. Job titles alone do not disqualify from SRC eligibility, and it is not significant that the employer did not initiate a removal of Petitioner from SRC during this period of time. It is significant that Petitioner's primary responsibility as an Administrative Assistant I from May 18, 1981 to March 22, 1982, and as Administrative Operations Supervisor from March 22, 1982 to October 24, 1985, was not the supervision, protection, care, custody, and control of inmates

    within a correctional institution. See Section 943.09(2), Florida Statutes (1981), and Rule 60S-1.0053(2)(a), Florida Administrative Code. Moreover, he did not meet the requirements of SRC qualification. Petitioner's job description did not require correctional officer certification. It is pivotal that Petitioner was not "employed as a correctional officer." His primary duties and responsibilities were not the custody or physical restraint of prisoners or inmates. See

    Rule 60S-1.0053(2)(a), Florida Administrative Code. He was not the supervisor or command officer of correctional officers with those responsibilities. See Rule 60S-1.0053(2)(b), Florida Administrative Code. He was, rather, administrative support personnel whose primary duties and responsibilities were in accounting and personnel, job functions specifically precluded from SRC. See Section 121.0515(2)(c), Florida Statutes, and Rule 60S-1.0053(2)(c) and (3), Florida Administrative Code.

53. Between May 18, 1981 and October 24, 1985, Petitioner also did not meet the commonly understood definitions of "command officer," "superintendent," or "assistant superintendent." See Rule 60S-1.0053(2)(b) and (c), Florida Administrative Code.

54. Herein, Respondent has not attempted to prove-up any agency policy or interpretation of the terms "supervisor," "superintendent," or "command officer," but has submitted two cases. One of those cases, State of Florida, Department of

    Administration, Division of Retirement v. Moore, 524 So. 2d 704 (Fla. 1st DCA 1988), holds that, "If a term is not defined in a statute or rule, its common, ordinary meaning applies." Accord, Shell Harbor Group, Inc., v. Department of Business Regulation, supra., and Boca Raton Artificial Kidney Center, Inc., v.

    Department of Health and Rehabilitative Services, 493 So. 2d 1055 (Fla. 1st DCA 1986). The common, ordinary meaning of "command officer" is "one who has authority to command." Hence, the term refers to a line correctional officer who orders and supervises the daily activities of subordinate line correctional officers in their primary duties of control and management of prisoners and inmates. Processing time cards and leave requests and personnel administration duties related to correctional officer disciplinary matters is not equivalent to the hazardous duty of command decisions regarding inmates as contemplated by the statute. Petitioner has not demonstrated that he qualified as a "command officer" from July 1, 1981 through October 24, 1985.

55. The terms, "superintendent" or "assistant superintendent," as used in Rule 60S-1.0053(2)(c) require that the member have individual "direct line authority" over others or "direct line authority" from the Superintendent (Director) through the member over all subordinate employees for the day- to-day operation of the facility. In the presence of one or two other "assistants" at all or most times, and in light of

    Petitioner's clear status in the excluded group of persons whose primary duties and responsibilities were accounting and oversight of personnel matters, (See Rule 60S-1.0053(3), Florida Administrative Code), Petitioner has not demonstrated that he qualified as a "superintendent" from July 1, 1981, through October 24, 1985. See also the similar discussions and conclusions in State of Florida, Department of Administration, Division of Retirement v. Moore, supra, and Hillman vs. Division of Retirement, 446 So. 2d 158 (Fla. 1st DCA 1984).

56. The intent of the SRC category is to provide an extra cushion of monetary and early retirement protection for those employees exposed to the physical and emotional rigors associated with controlling prisoners and inmates on a day-to- day basis, and Petitioner has not met those requirements since 1981.

57. With regard to Petitioner's claim to SRASC classification from October 25, 1985 until January 1, 1998, it is of concern that Ms. Baldry, on behalf of the employer, signed a statement on April 23, 1986, that Petitioner was eligible for SRASC and subject to reassignment in a special risk category. It also concerns me that the date of October 25, 1985, seems to have been selected without regard to any change in Petitioner's title, job description, or primary duties. The next job title change after March 22, 1982, was July 1994, when Petitioner became "Assistant Director/Administrative Support." 1/

58. With regard to the period of October 25, 1985, through January 1, 1998, Petitioner had no lapse in employment, so he had no lapse in entitlement to general retirement credits, but by October 25, 1985, he had been serving in a position not requiring correctional officer certification and performing duties which did not make him a "correctional officer," regardless of job title, for more than four years. By that date, all of FDLE's rules cited supra were in place. Even assuming that Petitioner's certification was in effect on

    July 1, 1981, that certification became "inactive" after four years of his not being in a correctional officer position, pursuant to Rule 11B-27.0023, Florida Administrative Code.

    Moreover, in light of FDLE's correspondence to the effect that none of its databases reflect Petitioner's certification or service as a correctional officer, there is no credible proof that Petitioner was maintaining his certification through continuing education credits.

59. Section 121.0515(7), Florida Statutes, requires that to qualify for SRASC, ten years of aggregate SRC qualification be earned sometime before retirement. That statute and

    Rule 60S-1.0054, Florida Administrative Code, require only that some part of the SRC time be served before SRASC assignment.

    SRASC eligibility does not require employment in a hazardous position or as a correctional officer, but it does require that certification be maintained, and Rule 60S-1.0054, Florida

    Administrative Code, defers to the "appropriate authority," in this case FDLE-CJSTC, to determine if certification has been maintained. Rule 60S-1.0054(2), Florida Administrative Code, states that SRASC membership requires that the member must (a) be employed by a unit whose primary purpose is corrections; and

    (b) is employed or reassigned to a non-special risk position which provides training and/or career development opportunities; and (c) has participated in SRC; and (d) remains certified by the appropriate authority; and (e) the member is subject to reassignment to a special risk class at any time.

60. Due to Petitioner's SRC membership from 1974 to 1981, he was eligible for SRASC on October 25, 1985, if he had remained certified by the appropriate authority, and he only needed to attain an additional three years in an SRC position at some point prior to his retirement in order to attain the required aggregate of ten years in SRC. If he had met all the other requirements of Rule 60S-1.0054, Florida Administrative Code, Petitioner would be entitled to SRASC for this period of time. However, Rule 11B-27.0023, Florida Administrative Code, and FDLE's correspondence in evidence reflect that a lapse of less than four years was subject to some type of ministerial correction of inactive status upon Petitioner's presentation of proof of continued training, but once four years had passed, re- training was required. Given Petitioner's absence from FDLE's continued certification and training databases and the deference

    owed FDLE's interpretation of its own rules, I must conclude that Petitioner did not maintain his certification and was not eligible for SRASC from October 25, 1985 to January 1, 1998, despite occasionally having full charge of the correctional facility during brief periods when the Director was out of town between 1994 and 1998.

61. The foregoing Conclusions of Law cover all points raised by the parties. A point that the parties have not addressed is that Petitioner was eligible for SRASC classification upon his first promotion on May 18, 1981. He had already served seven years as a certified correctional officer in SRC for a qualified employer. Respondent's SRASC rule only contemplates that an aggregate of ten years (or for Petitioner, three more years) of SRC be attained pre-retirement. Those three years could be attained even now if Petitioner had remained certified. As of May 18, 1981, Petitioner would have been eligible for SRASC in his successive administrative support positions from 1981 to 1998 so long as he met the other requirements of the SRASC rule, to remain certified and to be subject to reassignment at any time to a special risk position. Respondent's SRASC rule contemplates certification continuing even if the member is not in an SRC position, but Respondent's SRASC rule defers to the "appropriate authority," in this case FDLE-CJSTC, to determine whether the member remains certified. Herein, FDLE determined, upon FDLE's own rules, that Petitioner

    has not remained certified. I have not accepted FDLE's pronouncement that Petitioner lost his certification by not being "grandfathered-in," because it is an erroneous interpretation of the 1981 statute. However, I accept FDLE's rule and that agency's interpretation thereof to the effect that certification has not remained intact for the reasons already stated. I further conclude that SRASC entitlement from May 18, 1981, forward was not proven because there was no recommendation by the employer specifying that Petitioner was subject to special risk reassignment until 1986, and in 1987, Petitioner applied for SRASC and his employer did not sign a statement that he was subject to SRC reassignment nor recommend to Respondent that Petitioner be assigned to SRASC.

62. Accordingly, by any construction, Respondent must prevail herein on the merits.

    The Attorney's Fees Issue

    
    

63. Petitioner has demonstrated no legal basis upon which attorney's fees may be awarded in this cause, and none are awarded.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Division of Retirement enter a Final Order removing Petitioner from SRC and SRASC classification from July 1, 1981 to October 24, 1985, and from October 25, 1985 to

January 1, 1998, respectively.

DONE AND ENTERED this 19th day of August, 1999, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1999.

ENDNOTE

1/ The undersigned could speculate that the April 23, 1986, recommendation of Alachua County was somehow triggered by Petitioner having been classified as SRC for ten years, the number of years of aggregate SRC service specified in Section 121.0515(7), Florida Statutes, for SRASC eligibility, but there is no clear evidence to that effect.

COPIES FURNISHED:

Bill Salmon, Esquire Post Office Box 1095

Gainesville, Florida 32602

Emily Moore, Esquire Division of Retirement Cedars Executive Center Building C

2639 North Monroe Street Tallahassee, Florida 32399-1560

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

Department of Management Services Building C

2639 North Monroe Street Tallahassee, Florida 32399-1560

Paul A. Rowell, General Counsel Department of Management Services 4050 Esplande Way

Tallahassee, Florida 32399-0950

Thomas D. McGurk, Secretary Division of Retirement 4050 Esplanade Way

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 99-000704

Orders for Case No: 99-000704