STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VICTOR LARGER,

Petitioner,

vs.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,

Respondent.

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) Case No. 01-1619

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on July 18, 2001, by video teleconference at sites in Miami and Tallahassee, Florida, before Michael M. Parrish, an Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Victor Larger, pro se

4421 Southwest Third Street Miami, Florida 33134

For Respondent: Thomas E. Wright, Esquire

Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street

Post Office Box 3900 Tallahassee, Florida 32399-3900

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner should be granted credit in the Florida Retirement System (FRS) for the period from September 1973 through September 1974.

PRELIMINARY STATEMENT

Petitioner is a regular class member of the FRS with approximately 30 years of service. In 1999, Petitioner requested that the Division of Retirement (Division) give him retirement service credit for the period of time from September of 1973 through September of 1974 for service with Miami-Dade County. The Division denied Petitioner's request, and his timely appeal followed.

At the final hearing, Petitioner presented his own testimony. Respondent presented the testimony of David Ragsdale, Benefits Administrator with the Division, and Mike Edwards, administrator with Miami-Dade Human Relations Department. Petitioner offered 21 exhibits which were admitted without objection. Respondent offered 7 exhibits which were admitted without objection. Official recognition was taken of Chapter 121, Florida Statutes (2000), and of all relevant rules.

No transcript of the proceedings was filed. At their request, the parties were allowed over a month for the submission of their proposed recommended orders. Both parties

filed post-hearing proposals, which have been carefully considered during the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a current employee of Miami-Dade County and a participant in the Deferred Retired Option Program (DROP).

2. Petitioner has been an employee of Miami-Dade County since 1973. From 1970 until 1973, Petitioner was employed with the Florida Department of Transportation. Petitioner has 30 years of service credit in the FRS.

3. From September 1973 through September 1974 Petitioner was employed in a position with Miami-Dade County which was funded under Budget Status Code 4.

4. During this 13-month period, under Dade County Personnel Policy, Budget Status Code 4 denoted a "temporary or on call" position.

5. In October of 1974, Petitioner was promoted into a full-time, regularly established position.

6. In 2000, Petitioner was provided an estimate of benefits as he was in preparation to enter the DROP.

7. As a result, Petitioner requested that the Division grant him credit for the September 1973 through September 1974 period. The Division denied this request and Petitioner filed a timely appeal.

8. On March 6, 2001, Petitioner applied for and began participation in the DROP program effective April 1, 2001. Petitioner is now participating in the DROP. When Petitioner enrolled in the DROP program, two of the documents he signed included the following statement: "I cannot add additional service, change options, or change my type of retirement after

   my DROP begin date."

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto, pursuant to Section 120.57(1), Florida Statutes (2000).

10. The FRS is codified in Chapter 121, Florida Statutes.

    
    

    Section 121.051, Florida Statutes (2000), provides for compulsory participation in the FRS for all employees hired after December 1, 1970. Section 121.021(11), Florida Statutes (2000), defines "employee" as 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.

11. Pursuant to Section 121.021(53), Florida Statutes (2000), "a temporary position" is defined as follows:

    (b) In a local agency, the term means an employment position which will exist for less than 6 consecutive months, or other

    employment position as determined by rule of the division, regardless of whether it will exist for 6 consecutive months or longer.

    
    

12. Rule 60S-6.001(52), Florida Administrative Code, provides, in pertinent part:

    A temporary position in a local agency is an employment position which will exist for less then 6 consecutive months, or an employment position which is listed

    in 60S-1.004(5)(d), regardless of whether it will exist for 6 consecutive months or more.

    
    

13. Rule 60S-1.004(5)(d), Florida Administrative Code, provides, in pertinent part:

    (d) The following types of positions in a local agency are considered temporary positions for retirement purposes. Documents to support such temporary positions listed below must be maintained in the agency's records (see 60S-5.007(2)).

    1. On Call Positions (positions filled by employees who are called to work unexpectedly for brief periods and whose employment ceases when the purpose for being called is satisfied).

    2. CETA and JTPA Positions, and "enrollees" in Senior Community Service Employment Program of the USDA as provided in 60S-1.004(4)(c)7.a. and 8.a.

    3. Non-salaried Elective Positions (positions in which the elected officials receive no compensation, but receive expenses, e.g., per diem, stipend, or an honorarium).

    4. Temporary Non-instructional Community College Positions (effective July 1, 1991, non-instructional positions filled by employees paid from an other-personal- services budget for not more than 2080 hours of total service within a single community college. Such person who is employed beyond 2080 total aggregate hours within a

       community college shall thereafter be an employee filling a regularly established position and a compulsory member of the Florida Retirement System regardless of the budget from which he is paid.)

    5. Positions established on a temporary basis as a result of a state of emergency as declared by the Governor because of a disaster caused by destructive storms, winds, floods, fires, earthquakes, freezes, and other similar emergencies.

       
       

14. Rule 60S-5.007(2), Florida Administrative Code, provides:

    (2) The participating agencies shall furnish the Division with information and documents that are required to conduct the audit. The following documents may be requested:

    1. Payroll records

    2. Budget and chart of accounts

    3. Form W-2 Wage and Tax Statement

    4. Form 1099 -- Misc. Statement and supporting data

    5. Personnel records

    6. Personnel policies and procedures

    7. Individual employees' earning records

    8. Additional data as required

    
    

15. Rule 60S-2.002(4)(g), Florida Administrative Code, provides that "[t]he Division of Retirement may adjust a members' record of service credit only upon presentation of evidence sufficient to warrant such adjustment."

16. Miami-Dade County provided the appropriate material for the Division to conclude that Petitioner was filling a temporary position during the period in question.

17. Petitioner has the burden of proving by a preponderance of the evidence that he is entitled to retirement service credit for the period requested. See Section 120.57(1)(j) and (k), Florida Statutes; Florida Department of Transportation v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative

    Services, 348 So. 2d 349 (Fla. 1st DCA 1977); and Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993).

18. Petitioner produced no evidence to indicate that he was filling anything other than a temporary or on call position.

19. Furthermore, Section 121.085, Florida Statutes (2000), provides:

    The following provisions shall apply to creditable service as defined in s.

    121.021(17):

    1. The department shall adopt rules establishing procedures for the submission of evidence or information necessary to establish a member's claim of creditable service.

    2. No creditable service which remained unclaimed at retirement may be claimed or purchased after a retirement benefit payment has been cashed or deposited.

    
    

20. Even if Petitioner were now able to establish that he was not a temporary employee during the applicable 13-month period, he could not now claim creditable service for the subject period because a retirement benefit payment has been deposited in the DROP for him.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a final order denying Petitioner's request for retirement service credit for the period of his employment with Miami-Dade County from September 1973 through September 1974.

DONE AND ENTERED this 18th day of October, 2001, in Tallahassee, Leon County, Florida.

MICHAEL M. 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 18th day of October, 2001.

COPIES FURNISHED:

Victor Larger

4421 Southwest Third Street Miami, Florida 33134

Thomas E. Wright, Esquire Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street

Post Office Box 3900 Tallahassee, Florida 32399-3900

Erin Sjostrom, Director Division of Retirement

Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560

Emily Moore, Chief Legal Counsel Division of Retirement

Department of Management Services 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 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: 01-001619

Orders for Case No: 01-001619