STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUIS J. MORRINA,

Petitioner,

vs.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,

Respondent.

)

)

)

)

) Case No. 06-2473

)

)

)

)

)

)

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on September 1, 2006, by video teleconference with sites in Lauderdale Lakes and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Luis J. Morrina, pro se

6211 Southwest 161 Avenue Southwest Ranches, Florida 33331

For Respondent: Larry D. Scott, Esquire

Department of Management Services 4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner is entitled to retirement service credit for certain additional periods of time.

PRELIMINARY STATEMENT

By letter dated January 6, 2006, Respondent Department of Management Services, Division of Retirement, advised Petitioner Luis J. Morrina that his request for additional retirement service credit for three separate time periods of employment was denied, and Petitioner timely requested an administrative hearing regarding that determination. On July 14, 2006, this cause was transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

Petitioner testified on his own behalf. Respondent presented the testimony of Joyce W. Morgan and, by way of deposition, Peter Kong. Additionally, Petitioner's Exhibits numbered 1 and 2 and Respondent's Exhibit numbered 1 were admitted in evidence.

No transcript of the final hearing was filed. Both parties, however, filed proposed recommended orders after the conclusion of the final hearing. Those documents have been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. Petitioner was employed by the Miami-Dade County Public Health Trust--Jackson Memorial Hospital (Dade County) in September 1970 as a full-time employee. As such, he was eligible to earn service credit for retirement.

2. Dade County is an employer in the Florida Retirement System (FRS). Petitioner is a member of the FRS.

3. There are approximately 870 employers within the FRS, and approximately 600,000 employees are members of the FRS.

4. In the late 1990s the FRS began sending to each member an annual statement regarding that member's retirement account. The statement also advised that a member of the FRS could request an audit of that member's account at any time. The FRS sent these statements to the employing agency for distribution to that agency's employees who were members of the FRS.

5. The procedure changed in 2000 after the FRS obtained member-employees' addresses. Statements were subsequently sent by the FRS directly to each member-employee.

6. Prior to July 1, 1979, the employing agency determined which of its employees were eligible for membership in the FRS. On that date a new rule promulgated by Respondent became effective. Thereafter, the FRS determined which employees were eligible.

7. At the time of the final hearing in this cause, Petitioner had 34.83 years of service for which he had obtained retirement service credit. He was not given retirement service credit, however, for the time periods of January 11, 1976, through May 1, 1976; August 22, 1976, through May 28, 1977; and May 29, 1977, through August 6, 1977. In this proceeding, Petitioner seeks retirement service credit for these additional three time periods.

8. What benefits an employee receives is within the discretion of the employing agency. Similarly, how an employee is categorized, and what budgetary item or code an employee is paid from, is within the discretion of the employing agency.

9. During the time periods in question Dade County used four different budget codes or statuses for paying its employees. Budget codes 1 and 2 signified regular full-time employees. However, budget codes 3 and 4 signified employees in temporary, part-time, or summer positions, the equivalent of the State of Florida's other personnel services category. Those employees within budget codes 1 and 2 received retirement service credit, but those within budget codes 3 and 4 did not and were not eligible.

10. Petitioner's personnel file contains a copy of Dade County's Advice of Personnel Action form dated January 11, 1976, changing his status from full-time to part-time and placing him

    in budget status 3. Another Advice of Personnel Action form dated May 2, 1976, changed his status from part-time back to full-time and placed him in budget status 1. A third Advice of Personnel Action form dated August 22, 1976, changed Petitioner's status from full-time back to part-time and placed him in budget status 3. A Payroll--Employee Master Record shows that on May 29, 1977, Petitioner was promoted from a respiratory therapy tech 2 to a respiratory therapist, but his status remained part-time. A second Payroll--Employee Master Record shows that Petitioner was changed from part-time back to full- time on August 7, 1977.

11. Petitioner admitted during the final hearing in this cause that there were times when he was given reduced hours of work at his request. His personnel file indicates the impact of his requests. Although he had been hired as a regular, full- time employee, during the time periods in question, he was only a part-time employee.

12. Contrary to his testimony, Petitioner's personnel file reflects that he was aware at the time that his periods of part- time employment did not provide him with retirement service credit. His file contains a copy of a form enrolling him in the FRS signed by him on August 17, 1977. The form provides that Petitioner was employed by Jackson Memorial Hospital from September 14, 1970, through January 11, 1976, and again from

    May 16, 1976, through August 22, 1976. The file also contains a second FRS form which he signed on September 17, 1976, indicating that the reason he was submitting it was that he was going to full-time employment from part-time. Accordingly, Petitioner knew that he was not accruing continuous retirement service credit and understood that he needed to enroll in the FRS whenever he changed from part-time employment back to full- time.

13. A one-page payroll register submitted by Petitioner as one of his exhibits in this proceeding covers one of the time periods in question. Although it shows that Petitioner paid for insurance and union dues, it does not reflect any information regarding retirement and, therefore, cannot support the implication that Petitioner suggests, i.e., that he is entitled to retirement service credit.

14. Petitioner was careful to re-enroll in the FRS whenever he changed to full-time employment with Dade County. Similarly, Dade County changed the budget code each time Petitioner changed his employment status, which indicates an appropriate budget code was specifically selected.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569 and 120.57(1), Fla. Stat.

16. Petitioner bears the burden of proof in this proceeding. Florida Dept. of Transportation v. J. W. C. Co.,

    396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Dept. of Health & Rehabilitative Services, 348 So. 2d 349, (Fla. 1st DCA 1977).

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

    
    

    Section 121.021(11), Florida Statutes, defines an employee as a person receiving salary payment for work performed in a regularly-established position. Such positions are tied to the salary account utilized by the employer and/or the length of time the position is expected to be filled. § 121.021(52), Fla. Stat. Respondent's rules, promulgated to implement Chapter 121, are found in Chapter 60S-6, Florida Administrative Code, and, at the time in question, in Chapter 22B-6. Rule 22B-6.01(36) defined a regularly-established position as one authorized in an employer's approved budget for which salary funds are specifically appropriated to pay the salary for that position.

18. The evidence is clear that each time Petitioner left a full-time position for a part-time position, the budget status code was changed by Dade County from Code 1 signifying a regular, full-time position to Code 3 signifying other than a regular, full-time position. Whether Petitioner was placed in a "temporary" position or a longer term position each time is unimportant--what is important is that Dade County specifically removed him from a regularly-established position. During the

    time periods in question he was paid from a budget code which did not confer eligibility for retirement service credit.

19. Petitioner offered evidence that there was some confusion for a period of time regarding the coding utilized by Dade County as to some employees and that special effort was expended by Dade County to correct any errors. No evidence was offered that Petitioner was one of those employees or that the different positions he held were incorrectly coded. Rather, the evidence is clear that each time Petitioner moved from or to a full-time position, Dade County changed its budget code and Petitioner filled out the forms to re-enter the FRS when he once again moved to a full-time position.

20. Petitioner argues that FRS should have counseled him regarding the effects of his employment decisions over the years. He fails, however, to cite any legal basis for such a duty and none has been found. Even if there were such a duty, the evidence is clear that Petitioner knew that his decisions to work part-time meant he would not receive retirement service credit during those time periods since he was careful to submit the forms required to re-enter FRS at the conclusion of each period of part-time employment.

21. Petitioner also argues that he should receive partial retirement service credit for the time periods when he worked part-time. There is no legal basis for that argument.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered denying Petitioner's request for retirement service credit for the time periods of January 11, 1976 through May 1, 1976; August 22,

1976, through May 28, 1977; and May 29, 1977, through August 6,

1977.

DONE AND ENTERED this 27th of October, 2006, in Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

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 of October, 2006.

COPIES FURNISHED:

Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

Luis J. Morrina

6211 Southwest 161 Avenue Southwest Ranches, Florida 33331

Sarabeth Snuggs, Director Division of Retirement

Department of Management Services Post Office Box 9000

Tallahassee, Florida 32315-9000

Steven S. Ferst, General Counsel Department of Management Services 4050 Esplanade Way, Suite 160

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: 06-002473

Orders for Case No: 06-002473