STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MADONNA JERVIS WISE,

Petitioner,

vs.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,

Respondent.

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) Case No. 02-0337

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RECOMMENDED ORDER

Upon due notice, this matter was scheduled for final hearing on April 2, 2002, in Dade City, Florida. However, the court reporter failed to appear and, due to the unavailability of another court reporter, the parties stipulated to forego the formal hearing and to have the matter decided solely on the deposition of Petitioner and the deposition of June Ferguson, Benefits Administrator, Division of Retirement and the exhibits offered at those depositions. Based on this stipulation, the matter was placed in abeyance to allow the parties to move forward in taking the depositions.

APPEARANCES

For Petitioner: Madonna Jervis Wise, pro se

6245 Frontier Drive

Zephyrhills, Florida 33540

For Respondent: Thomas E. Wright, Esquire

Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUE

As a member of the Florida Retirement System, should Petitioner be allowed to purchase, for retirement credit service time with the Florida Retirement System, six months of out-of- state employment with the State of Indiana Agricultural Extension Service during 1972 and 1973?

PRELIMINARY STATEMENT

By letter dated September 11, 2001, the Department of Management Services, Division of Retirement (Division of Retirement) advised Petitioner that her request to receive credit for her out-of-state employment as an extension agent in the State of Indiana had been denied on the basis that Petitioner failed to present proper documentation that during this period of time she had been covered by a public pension plan as required by Section 121.1115, Florida Statutes. By a petition dated September 20, 2001, Petitioner requested a hearing on this matter. Thereafter, the Division of Retirement, by letter dated January 25, 2002, referred the matter to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of a formal hearing.

At the time scheduled for hearing, the parties and the undersigned were advised that due to automobile trouble the court reporter would be unable to attend the hearing. The Division of Retirement was unsuccessful in its efforts to obtain a substitute court reporter. Thereafter, the parties stipulated to this matter proceeding solely on the deposition of Petitioner and the deposition of June Ferguson, Benefits Administrator, Division of Retirement. Additionally, it was stipulated that any exhibit the parties wished to be admitted would be made a part of the transcript of the depositions. Through her deposition taken on May 6, 2002, Petitioner testified in her own behalf and offered, without objection, her Exhibits 1 through 7. Petitioner's Exhibits 1 through 7 are received in evidence.

Through her deposition taken on May 3, 2002, the Division of Retirement presented the testimony of June Ferguson and offered, without objection, the Division of Retirement's Exhibits 1 through 6. The Division of Retirement's Exhibits 1 through 6 are received in evidence.

The Transcripts of the depositions were filed with the Division on June 28, 2002. By stipulation, the parties were to file proposed recommended orders within 20 days of filing the transcripts of the depositions. The parties timely filed their Proposed Recommended Orders.

FINDINGS OF FACT

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

1. Petitioner is a regular class member of the Florida Retirement System with 28 years service credit.

2. In May 2001, Petitioner requested information from the Division of Retirement concerning the purchase of retirement service credit for the six months that she was employed by the Cooperative Extension Service at the Carroll County Extension Office in Delphi, Indiana.

3. Petitioner obtained the required form (FR-30) (Division of Retirement's Exhibit 1) and submitted the FR-30 to her former employer. The FR-30 was completed by Pat Davis, Deputy Auditor, Carroll County Auditor's Office, Delphi, Indiana, which indicated that Petitioner had been employed by the Carroll County Cooperative Extension Service during the periods of

   June 1, 1972 through August 31, 1972, and June 1, 1973 through August 31, 1973, for a total of six months service. The portion of the FR-30 completed by Pat Davis also indicated that Petitioner had closed her account and withdrawn her contributions. The FR-30 form also indicated that the pension plan was: (a) a defined benefit plan; (b) a defined

   contribution plan; and (c) that the employer made contributions on behalf of the member.

4. Petitioner testified, which I find credible, that she made contributions to a pension plan during her employment with the Cooperative Extension Services at the Carroll County Extension Office and that she withdrew her contributions to that plan after she left her employment with the Cooperative Extension Services at the Carroll County Extension Office.

5. By letter dated July 31, 2001, the Division of Retirement advised Petitioner that Section B of the FR-30 had not been completed by the Indiana Public Employees Retirement System and advised Petitioner to submit an enclosed FR-30 to that agency for completion.

6. By letter dated August 20, 2001, Charles E. Moore, Pension Administrator for the State of Indiana, Public Employees' Retirement Fund (PERF), advised Petitioner that he was returning the FR-30 because he was unable to find any record of Petitioner being a member of, or contributing to, the Indiana PERF. The letter further advised Petitioner: (a) that the records indicated that Carroll County did not join the Indiana PERF until January 1, 1976 and (b) that Petitioner was apparently not covered by the Indiana PERF during her employment by Carroll County, Indiana.

7. Although Petitioner was not a member of the Indiana PERF while employed by the Carroll County Extension Service, it is apparent that she was covered by a retirement or pension plan provided by Carroll County, Indiana (a political subdivision) during her employment there as indicated by Petitioner's testimony and by Pat Davis's responses on the Division of Retirement's Exhibit 1 (FR-30), notwithstanding June Ferguson's subsequent conversations with Pat Davis to the contrary.

   CONCLUSIONS OF LAW

   
   

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

9. Subsections 121.1115(1)(a)1. 2. 3., Florida Statutes, provide as follows:

   Effective January 1, 1995, a member of the Florida Retirement System may purchase creditable service for periods of public employment in another state and receive creditable service for such periods of employment. Service with the Federal Government, including any military service, may be claimed. Upon completion of each year of service earned under the Florida Retirement system, a member may purchase up to 1 year of retirement credit for his or her out-of-state service, subject to the following provisions:

   1. LIMITATIONS AND CONDITIONS.--To receive credit for the out-of-state service:

      1. The out-of-state service being claimed must have been:

         1. Performed in a position of employment with the state or a political subdivision thereof or with the Federal Government;

         2. Covered by a retirement or pension plan provided by the state or political subdivision, or by the Federal Government, as appropriate; and

         3. Performed prior to a period of membership in the Florida Retirement System. (Emphasis furnished.)

         
         

10. 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). Petitioner has the burden of proof in this proceeding. To meet this burden, Petitioner must establish facts upon which her allegations are based by a preponderance of the evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996), and Subsection 120.57(1)(j), Florida Statutes (2001).

11. Petitioner has met her burden to show that she contributed to, and was covered by a retirement or pension plan of Carroll County, Indiana, a political subdivision of the State of Indiana, during her employment with the Extension Service during June 1, 1972 through August 31, 1972, and June 1, 1973 through August 31, 1973, and she is entitled to purchase, for retirement credit, that period of service with Carroll County, Indiana.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Retirement enter a final order finding Madonna J. Wise eligible to purchase, for retirement credit service time with the Florida Retirement System, the six months of out-of-state service with the Extension Service in Carroll County, Indiana during June 1, 1972, through August 31, 1972, and June 1, 1973, through

August 31, 1973.

DONE AND ENTERED this 1st day of August, 2002, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Madonna Jervis Wise 6245 Frontier Drive

Zephyrhills, Florida 33540

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 1st day of August, 2002.

Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

Erin Sjostrom, Director Division of Retirement

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

Monesia Taylor Brown, Acting General 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 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: 02-000337

Orders for Case No: 02-000337