STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTOPHER RAYBORN, )

)

Petitioner, )

)

vs. ) Case No. 99-5364

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 29, 2000, by video teleconference with the Petitioner appearing from Miami, Florida, and the Respondent attending in Tallahassee, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Roberta Fulton Fox, Esquire

Law Offices of Roberta Fox, P.A. Grove Plaza, Seventh Floor

2900 Southwest 28th Terrace Miami, Florida 33133

For Respondent: Thomas E. Wright, Esquire

Division of Retirement

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

STATEMENT OF THE ISSUE

Whether the Petitioner, Christopher Rayborn, is entitled to participate in the Florida Retirement System (FRS).

PRELIMINARY STATEMENT

On November 24, 1999, the Department of Management Services, Division of Retirement (Division) issued a letter advising the Petitioner, Christopher Rayborn, that he was excluded from FRS participation effective April 22, 1996. The notice outlined the Petitioner's right to appeal the decision and explained that the Division's determination was based on the Petitioner's status as an "on-call pool" employee of Jackson Memorial Hospital. The Petitioner timely challenged that determination and requested an administrative hearing. The case was forwarded to the Division of Administrative Hearings for formal proceedings on December 23, 1999.

On May 16, 2000, the Division issued an amendment to the November 24, 1999, decision. Such amendment clarified the dates of Petitioner's employment and advised the Petitioner that effective January 1, 1996, employees hired by the Jackson Memorial Public Health Trust on or after January 1, 1996, may not participate in the FRS. Based upon the amended agency decision, the Petitioner was eligible for participation in the FRS for the period January 11, 1988, through December 8, 1991. For the period thereafter, the Division determined the Petitioner did not, as a matter of fact or law, qualify for participation.

At the hearing the Petitioner testified in his own behalf and offered Petitioner's Exhibits 1 through 17 which were admitted into evidence. The Respondent presented testimony from Mireya Guzman, Cynthia Sinclair, and David Ragsdale. The Respondent's Exhibits 1 through 5, 7, 8, 9, 11, 12, 13, 14, 15,

16, 17, 18, 19, and 21 were also received in evidence. A transcript of the proceeding has not been filed.

The parties initially stipulated that they would file proposed recommended orders within 20 days of the hearing. On September 11, 2000, the Petitioner filed an unopposed Motion for Extension of Time in which to file the proposed orders.

Thereafter all parties were granted leave to late-file proposed recommended orders. Such proposals have been considered in the preparation of this order.

FINDINGS OF FACT

1. The Petitioner, Christopher Rayborn, is by training and experience a nurse. He was first hired by Jackson Memorial Hospital (also identified in this record as Jackson Memorial Hospital Public Health Trust) in 1988. At that time Petitioner was employed into a regularly established, full-time position of nurse and was enrolled in the FRS. In 1991 the Petitioner terminated his employment at Jackson Memorial Hospital (Jackson).

2. It is undisputed that Petitioner was entitled to participation in the FRS for the period of employment at Jackson from 1988-1991.

3. In 1994 the Petitioner was again recruited to work at Jackson. Recruiters for Jackson attempted to fill the many vacancies in the nursing staff with permanent full-time employees. Such permanent full-time employees were eligible for benefits including retirement through the FRS. Also available were positions designated as "temporary relief/pool nurse." The "pool" nurses did not receive benefits. They did, however, receive a higher rate of pay.

4. Regardless of the position, new employees were given forms, including the FRS participation form, to complete for Jackson. This Petitioner completed the FRS form and attended the workshop for all new Jackson employees.

5. Had the Petitioner accepted a full-time permanent nurse position, he would have received all benefits then available to Jackson permanent employees including participation in the FRS. The Petitioner would have been subject to disciplinary rules for permanent employees and would have been required to work the shifts and hours designated by the employer.

6. Instead, the Petitioner opted to receive a higher hourly rate of pay. By so doing, the Petitioner selected a position that was designated as a temporary relief/pool nurse that did not provide benefits. The Petitioner did not accrue paid leave and did not receive other benefits available to full-time employees.

7. Any participation contributed for the Petitioner in the FRS for the period 1991 through 1998 was done in error. As a temporary employee he was not authorized to participate.

8. In 1996 the Petitioner's job description was changed to "on call/pool nurse." Again, this position did not provide benefits and provided the Petitioner with a higher rate of pay than the full-time permanent nurse positions paid.

9. As an on call/pool nurse the Petitioner worked 40 hour weeks but did not have to accept any work assignment or schedule which he did not want to work. He was entitled to decline shifts or schedules according to his personal interests.

10. Jackson was required to continue the on call/pool nurse system due to the tremendous shortage in nurses. Had sufficient numbers accepted full-time permanent nurse positions, the use of on call/pool nurses would not have been necessary.

11. In 1998 the Petitioner accepted a full-time permanent nurse position with Jackson. When moved into the full-time position, the Petitioner accepted a lower rate of pay and was entitled to benefits. He was not offered participation in the FRS at that time, however, because effective January 1, 1996, Jackson no longer participated in the FRS.

12. Given the nurse staffing needs of Jackson, the use of on call/pool nurses continued uninterrupted for the period 1991 through 1998. None of the on call/pool nurses receiving the higher rate of pay were eligible for benefits from Jackson.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

14. In this case the Petitioner was employed as an on- call/pool nurse. His employment continued for an extended period of time but his entitlement to that employment could have ceased when the purpose for which he was called to serve was satisfied. In fact, had there not been such a shortage of nurses to work at Jackson, the Petitioner would not have been able to continue as a temporary nurse.

15. The evidence is clear that the on call temporary nurses had a financial incentive to their choice of the pool designation. On call/pool nurses received the higher rate of pay and the freedom to refuse a shift or schedule. In return, they gave up benefits. This Petitioner's argument that he should have been included in FRS participation belies the employment agreement he accepted. This Petitioner had no guarantee of future employment, could not be held accountable for the refusal to accept a schedule, and received none of the benefits that

    full-time permanent employees were given. That his employment continued for more than six months does not alter those undisputed facts.

16. Finally, in this case the provisions governing the FRS must be considered and are controlling. Participation is for

employment in regularly established positions as defined by statute and rule. See Rule 60S-1.004(5)(d)5, Florida Administrative Code. The undisputed evidence supports the conclusion that this Petitioner did not accept a permanent regularly established position with Jackson until 1998.

Accordingly, for the period prior to that time (subsequent to 1991), he was not eligible for enrollment into the FRS. When rehired in 1994 he could have accepted smaller wages with benefits and been a part of the FRS. He elected not to do so.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a Final Order denying the Petitioner's request for participation in the FRS for the period subsequent to 1991.

DONE AND ENTERED this 27th day of October, 2000, in Tallahassee, Leon County, Florida.

J. D. Parrish 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 27th day of October, 2000.

COPIES FURNISHED:

Roberta Fulton Fox, Esquire

Law Offices of Roberta Fox, P.A. Grove Plaza, Seventh Floor

2900 Southwest 28th Terrace Miami, Florida 33133

Thomas E. Wright, Esquire Division of Retirement

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

Ron Poppell, Interim Director Division of Retirement

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

Emily Moore, Chief Legal Counsel Division of Retirement

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

Bruce Hoffmann, General Counsel Department of Management Services 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: 99-005364

Orders for Case No: 99-005364