STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MINOR L. BRYANT,

Petitioner,

vs.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,

Respondent.

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) Case No. 01-2694

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RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on September 25, 2001, in Tallahassee, Florida.

APPEARANCES

For Petitioner: William J. Roberts, Esquire

Nabobs, Goblin & Nickers, P.A. Post Office Box 11008 Tallahassee, Florida 32302-3008

For Respondent: Larry D. Scott, Esquire

Division of Retirement Department of Management Services Post Office Box 3900 Tallahassee, Florida 32315-3900

STATEMENT OF THE ISSUE

Is Hardee County statutorily authorized to submit payment to upgrade service credit for a former member of the Elected

Officers' Class (EOC), Florida Retirement System (FRS), when the member held office after his subclass, EOC, was established, and opted for membership in a class other than EOC, within the purview of Subsection 121.052(5)(a), Florida Statutes (2000)?

PRELIMINARY STATEMENT

By Certified Mail dated May 22, 2001, the Division of Retirement (Division) advised Minor L. Bryant (Bryant) that he was eligible to request an upgrade of service from Regular Class, FRS, to EOC, FRS for the period November 22, 1988, through October 1992. However, the payment for that upgrade would be Bryant's responsibility since there was no statutory authority that would allow Hardee County to submit payment for this upgrade of service for Bryant. The Division further advised Bryant that this decision constituted final agency action and that if Bryant disagreed with the decision he should file a formal Petition for review of this final agency action. On June 11, 2001, Bryant filed a petition for Hearing and Appeal of Final Agency Action. By letter dated July 9, 2001, the Division referred this matter to the Division of Administrative Hearings for the assignment of an Administrative Law Judge and for the conduct of a formal hearing.

At the hearing, Bryant testified in his own behalf and presented the testimony of Andrew J. McMullian. Bryant's Exhibits 1 and 2 were admitted in evidence over the Division's

hearsay and relevancy objections. The Division presented the testimony of Robert Henning, Ira Gaines, and David Ragsdale. The Division's Exhibits 1 through 11 were admitted in evidence.

There was no transcript of this proceeding filed with the Division of Administrative Hearings. The parties timely filed their Proposed Recommended Orders.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Division is the agency of the State of Florida that is charged with regulating and administering the FRS, both the Regular Class and EOC.

2. In November 1988, Bryant was elected to the County Commission of Hardee County, Florida.

3. Upon being elected in 1988, Bryant was given the option under Chapter 121, Florida Statures, to participate in either the Regular Class or EOC of the FRS.

4. On November 28, 1988, Bryant signed a Division of Retirement Personal History Record (FRS-M10) designating his wife, Mary B. Bryant, as the primary beneficiary of his retirement benefits. The portion of the FRS-M10 to be completed by the employer indicated the reason for submitting the FRS-M10 was for enrollment and the Plan chosen was FRS Regular. The

   distribution on the FRS-M10 indicated that the employee (Bryant) was to receive a copy.

5. On December 6, 1988, Bryant signed a document entitled: "Ballot For Elected County Officials" (Ballot). In pertinent part the executed Ballot provides:

   As an elected officer who is eligible for optional membership in the Elected State Officers Class (ESOC) of the Florida Retirement System (FRS), I hereby select membership as follows:

   
   

   I wish to join the Elected State Officer's class, or

   X I wish to participate in the FRS Regular Class, or

   ___ I wish to participate in the FRS Special Risk Class (elected sheriffs only), or

   ___ I do not wish to participate in the FRS in any manner.

   
   

6. In addition, the Ballot included the following cautionary language:

   I understand the provisions of the different classes and that my selection will be effective on the first day of the month during which my employer changes my payroll records. Elected county officers will have one year from date they assume office after election or reelection to make the above selection.

   
   

7. If the elected county officer did not make a selection within the one-year time period, the member would be automatically placed in the Regular Class of FRS.

8. Marilyn A. McCready, Personnel/Payroll Aide for Hardee County, completed the employer's portion of the Ballot and forwarded the Ballot to the Division on December 6, 1988.

9. On the upper right hand corner of the Ballot is the notation: "OK/RH/He will upgrade if Re-elected." Robert Henning (Henning), an employee of the Division, testified that the initial RH was his, and that he had made the notation on the Ballot.

10. Henning's testimony, which I find to be credible, was that, during this time period, when an elected officer selected to participate in the Regular Class rather than the EOC, it was his policy, and the policy of the Division, to contact the employer and, if possible, the elected officer to verify the elected officer's choice. In this case, Henning does not have a present recollection of having talked to either the employer or to Bryant concerning this matter. However, the notation indicates that he either talked to the employer or to Bryant, or to both. In any event, Henning was advised by one or the other that Bryant would upgrade his selection if re-elected.

11. Bryant contends that he did not make the selection of FRS, Regular Class on the Ballot which he signed on

    December 6, 1988, but that someone in the Personnel Office of Hardee County inadvertently designated FRS, Regular Class as his choice. However, Bryant also testified that he did not normally

    sign blank documents, which would indicate that the Ballot had been marked by Bryant or someone else before Bryant executed the document. If the Ballot had been marked by someone other than Bryant before Bryant signed the Ballot, then Bryant would have, or should have, had knowledge of the selection of FRS, Regular Class as his choice even though he may not have personally marked the Ballot.

12. Bryant was re-elected to the Hardee County Board of County Commissioners in November 1992. In December 1992, a change of plan from Regular to EOC was executed and Bryant became a member of the EOC.

13. There is insufficient evidence to establish facts to show that someone in the Hardee County Personnel office marked an "X" on the Ballot indicating that Bryant wished to participate in Regular Class rather than participate in the EOC.

14. Bryant knew, or should have known, at the time he signed the Ballot, that an "X" had been placed on the Ballot indicating his wish to participate in the Regular Class.

    CONCLUSIONS OF LAW

    
    

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

16. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal;

    Florida Department of Transportation v. J.W.C. Company, Inc.,

    
    

    396 So. 2d 778 (Fla. 1st DCA 1981). Bryant has the burden of proof in this proceeding. To meet his burden, Bryant must establish facts upon which his allegations are based by a preponderance of the evidence. Subsection 120.57(1)(j), Florida Statutes (2000).

17. When Bryant was elected in 1988, Subsection 121.052(1)(g), Florida Statutes, provided for optional participation in the EOC for an elected officer such as Bryant. However, in 1990, the legislature enacted Chapter 90-274, Laws of Florida, which amended Section 121.052, Florida Statutes, requiring compulsory membership in the EOC for an elected officer such as Bryant unless the elected officer chose to retain membership in a different class. Upon re-election in 1992, Bryant chose not to retain membership in the Regular Class. Therefore, Bryant became a member of the EOC.

18. Chapter 97-180, Section 4, Laws of Florida [Subsection 121.052(5)(c), Florida Statutes (2000)], which became effective May 30, 1997, provided a six-month window (May 30, 1997 through December 31, 1997) within which Hardee County or any other employer could elect to pay a member's required contribution and interest to the FRS Trust Fund for an additional retirement credit claim such as Bryant's. The Division's Information Release Number 1997-36 advised all employers of this amendment.

    For whatever reason, Hardee County did not pay Bryant's required contribution and interest to the FRS Trust Fund for his additional retirement claim for the period November 1988 through October 1992, during this six-month window.

19. Subsection 121.52(5)(a), Florida Statutes (2000), provides in pertinent part as follows:

    1. As provided in paragraph (b), and subject to the provisions of subsection (6), if applicable, a current or former member of the Elected Officers' Class, or former elected officer who held office after his subclass of the Elected Officers' Class was established, and who opted for membership in a membership class of the Florida Retirement System other than the Elected Officers' Class, may purchase at his or her own expense additional retirement credit in the Elected Officers' Class for all creditable service as an officer within the purview of this class, and such other creditable service as authorized hereunder for which he or she has accumulated credit in the retirement system or class within the Florida Retirement System from which he or she transfers. . . . (Emphasis furnished.)

       
       

20. Article VIII, Section 1(b), Constitution of the State of Florida, as revised in 1968 and subsequently amended, provides as follows:

    Section 1. Counties.---

    
    

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    (b) COUNTY FUNDS. The care, custody and method of disbursing county funds shall be provided by general law.

21. Other than the window provided by the legislature in Chapter 97-180, Section 4, Laws of Florida, I find no statutory authority for Hardee County to pay for an additional retirement claim of an elected officer such as the one proposed by Bryant.

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 the relief sought in his Petition for Hearing and Appeal of Final Agency Action

DONE AND ENTERED this 23rd day of October, 2001, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 23rd day of October, 2001.

COPIES FURNISHED:

William J. Roberts, Esquire Nabors, Giblin & Nickerson, P. A. Post Office Box 11008 Tallahassee, Florida 32302-3008

Larry D. Scott, Esquire Division of Retirement

Department of Management Services Post Office Box 3900

Tallahassee, Florida 32315-3900

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

Monesia Taylor Brown, Deputy 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 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: 01-002694

Orders for Case No: 01-002694