STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERIN MCGUIRE,

Petitioner,

vs.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,

Respondent.

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) Case No. 04-1674

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RECOMMENDED ORDER

In accordance with notices, this cause came on for final hearing, before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings, on

July 20, 2004, in Panama City, Florida. The appearances were as

follows:

APPEARANCES

For Petitioner: Erin R. McGuire, pro se

1507 Rhode Island Avenue Lynn Haven, Florida 32444

For Respondent: Thomas E. Wright, Esquire

Department of Management Services Division of Retirement

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399 STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Petitioner, Erin R. McGuire, is entitled to purchase

retirement service credit for the 1980-1981 school year based upon the determination of whether she was on a properly authorized leave of absence for that school year or, conversely, had actually resigned for that year before returning as a full- time employee of the Bay County School System the following year.

PRELIMINARY STATEMENT

This cause arose when the Petitioner, an employee of the Bay County School District and a member of the Florida Retirement System requested an estimate from the Division of Retirement (Division) for the cost of purchasing retirement credit in the Florida Retirement System (FRS) for the 1980-1981 school year. Ms. McGuire had left her teaching position with the Bay County School System in October 1980 and moved from the Panama City area to be near her family in Alabama. She changed her mind and returned to Panama City in September 1981 and resumed teaching with the Bay County School System as a permanent employee from that time since. Ms. McGuire requested the estimate referenced above from the FRS, and after reviewing the information provided by the school board and Ms. McGuire, the Division issued a decision on March 10, 2004 (final agency action), denying the Petitioner's request to purchase service credit for that year. She thereupon timely sought a formal proceeding to contest that decision.

The cause came on for hearing as noticed. The Petitioner testified on her own behalf at hearing and offered three exhibits which were admitted into evidence as corroborative hearsay. The Respondent presented the testimony of Doug Cherry, its Benefits Administrator. The Respondent also offered four exhibits which were admitted into evidence. Official recognition was also taken of Florida Administrative Code Rule 60S-2.006, as well as Chapter 121, Florida Statutes (2003).

Upon concluding the proceeding, the parties elected to file Proposed Recommended Orders. The Proposed Recommended Orders were due within 10 days of formal hearing and were timely filed and are considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is a regular class member of the FRS, with some 28 years of service credit. Her entire FRS career has been with the Bay County School District.

2. On October 8, 1980, the Petitioner resigned her employment with the Bay County School System to re-locate her residence to Alabama. She wanted to be closer to her family in Alabama and at the time did not intend to return to Bay County.

3. She changed her mind, however, and on September 9, 1981, was re-hired by the Bay County School System. She has continued her employment with Bay County schools from that time until the present.

4. The Petitioner maintains that she spoke to her school principal after tendering her resignation in 1980, and he persuaded her to rescind her resignation and instead take a leave of absence. No school board record of such a decision or denomination of her absence from employment as a leave of absence, was produced at hearing. The Petitioner did admit that when she left her employment with Bay County in 1980, she had no intention of ever returning at that point. She did, however, return for the following school year and has been employed by Bay County Schools ever since.

5. When a member, such as the Petitioner, seeks to purchase a leave of absence from the FRS, they, and their employer, must verify the leave of absence on the FRS form FR

1. That form is provided by the Division and must be executed by both the employer and the employee. The leave of absence must have been approved by the employer, the school board, either prior to or during the time period of the leave of absence, according to the rule cited herein.

   1. When Ms. McGuire submitted her form FR 28 to the school board, the board completed the form indicating that she had resigned on October 8, 1980 (not a leave of absence), and was re-hired as a "new hire" on September 9, 1981. It is also the case that the school board approved amending her record to show the time period in question as a leave of absence. That

      amendment of her record was approved by the school board on January 14, 2004, however, long after the time period of the purported leave of absence itself.

      CONCLUSIONS OF LAW

      
      

   2. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding in accordance of Sections 120.57(1) and 120.569, Florida Statutes (2003).

   3. The Florida Retirement System was created by the Legislature and codified in Chapter 121, Florida Statutes (2003). Florida Administrative Code Rule 60S-2.006(1)(a), promulgated by the FRS, provides in pertinent part as follows:

      1. A member may receive retirement credit for a total of two work years of creditable service for authorized leaves of absence under the Florida Retirement System, subject to the following: (a) A leave of absence must be authorized in writing by a member's employer prior to or during the leave of absence.

         
         

   4. In administrative proceedings, the burden is on the party seeking to establish the affirmative of the issue. See

      §§ 120.57(1)(j) and (k), Florida Statutes (2003); 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).

   5. The Petitioner testified that she was on an approved leave of absence during the period in question. Indeed it appears that the school board authorized, on January 14, 2004, the period of time she was absent from employment with the school board in 1980 and 1981 to be retroactively established in its records as a leave of absence and not a resignation. The fact is, however, that under the above-quoted rule, the school board's retroactive approval of the period of absence as an official leave of absence does not render that approval sufficient to justify according her FRS service credit for that period of time, because it was not approved during the actual time period of the leave in question or prior thereto. Accordingly, it is concluded that the Petitioner is ineligible to purchase leave of absence credit pursuant to Florida Administrative Code Rule 60S-2.006, based upon the facts established by preponderant evidence herein.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED that a final order be entered by the Department of Management Services, Division of Retirement, denying the Petitioner's request to purchase leave of absence credit for the period October 1980 through September 1981.

DONE AND ENTERED this 1st day of September, 2004, in Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF 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 September, 2004.

COPIES FURNISHED:

Sarabeth Snuggs, Director Division of Retirement

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

Alberto Dominguez, General Counsel Department of Management Services Division of Retirement

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399

Thomas E. Wright, Esquire Department of Management Services Division of Retirement

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399

Erin McGuire

1507 Rhode Island Avenue Lynn Haven, Florida 32444

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: 04-001674

Orders for Case No: 04-001674