STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA L. HUGHES,

Petitioner,

vs.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,

Respondent.

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) Case No. 07-4705

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RECOMMENDED ORDER

Pursuant to notice, this cause came before Administrative Law Judge Jeff B. Clark for final hearing on December 13, 2007, in Moore Haven, Florida.

APPEARANCE

For Petitioner: Barbara L. Hughes

Norman L. Hughes, Authorized Representative

Education Center of Southwest Florida, Inc.

Post Office Box 183 LaBelle, Florida 33975

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 in this case is whether Petitioner, Barbara L. Hughes, who was reemployed as a "media specialist," but who also

taught a class, violated the provisions of Section 121.091, Florida Statutes (2006).

PRELIMINARY STATEMENT

By letter dated October 1, 2007, Respondent, Department of Management Services, Division of Retirement (hereinafter "Division"), notified Petitioner, Barbara L. Hughes, a retired member of the Florida Retirement System (hereinafter "FRS"), that she was in violation of the reemployment provision of FRS by returning to work with the Glades County School Board within

12 months of her retirement date. Petitioner terminated the Deferred Retirement Option Program (hereinafter "DROP"), effective June 30, 2007, but then returned to employment with the Glades County School Board as a media specialist on August 14, 2007. Although her instructional activities were largely devoted to those associated of a media specialist, she

taught one class a day. The Division inactivated her retirement benefits and requested she repay those retirement benefits and health insurance subsidy payments to which it suggested she was not entitled. When Petitioner disagreed with the Division's request, the Division issued a Final Agency Action letter on October 1, 2007. Petitioner timely requested a hearing, and this case was forwarded to the Division of Administrative Hearings on October 12, 2007, for formal hearing.

On the same day, October 12, 2007, an Initial Order was sent to both parties. Based on the parties' responses to the Initial Order, on October 25, 2007, the case was scheduled for final hearing in Moore Haven, Florida, on December 13, 2007. On November 27, 2007, Norman L. Hughes, Petitioner's husband, was accepted as her authorized representative.

The final hearing took place as scheduled. Petitioner testified in her own behalf and introduced seven exhibits, which were admitted into evidence and marked Petitioner's Exhibits 1 through 7. Respondent presented the testimony of Charlene Fansler and introduced 22 exhibits, which were admitted into evidence and marked Respondent's Exhibits 1 through 22. Three of Respondent's exhibits were depositions: Sharon Petti; Barbara L. Hughes; and Jean Prowant.

In addition, the Division requested official recognition of Subsections 121.091(9)(b)2., 121.091(9)(b)3., 121.091(13)(h),

and 1012.01(2), Florida Statutes (2006).

The parties agreed to submit proposed recommended orders before January 28, 2008. No transcript of proceedings was filed. Both parties submitted Proposed Recommended Orders.

All references are to Florida Statutes (2006), unless otherwise noted.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made:

1. Petitioner, Barbara L. Hughes, is a member of FRS. She terminated DROP and retired effective June 30, 2007.

2. Petitioner returned to work on August 14, 2007.

   
   

3. Petitioner was paid retirement benefits and health insurance subsidy payments for August 2007. The retirement benefit for August was $1,640.23. The health insurance subsidy payment for August was $150.00. The total amount for retirement benefits and health insurance benefits was $1,790.23. To avoid a threatened penalty, she voluntarily repaid these benefits subject to her belief that she was legally entitled to them.

4. Petitioner's retirement benefits have been inactivated since September 2007.

5. Petitioner is currently employed and has been employed for more than 32 years as a media specialist for the Glades County School Board, teaching at Moore Haven Junior-Senior High School. The school's student population is approximately 350. Although her position title is "media specialist," her present instructional activities are mixed, i.e., she is a media specialist 71 percent of the workday and a classroom teacher

   29 percent of the workday.

6. In July 1999, Petitioner enrolled in the Florida Retirement System DROP plan.

7. The Florida Retirement System DROP plan allows a member of the FRS to retire and accrue retirement benefits while the member continues employment. Since the member does not accrue further service credit while in DROP, the FRS considers the member retired.

8. Petitioner terminated her DROP and retired, effective June 30, 2007.

9. As a retired member of FRS, Petitioner is subject to the reemployment limitations in Section 121.091, Florida Statutes.

10. Petitioner returned to employment with an annual contract with a position title, media specialist, in August 2007. This was the same position that she had been employed in when she entered and terminated DROP.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings and of the parties hereto pursuant to Sections 120.569 and Subsection 120.57(1), Florida Statutes (2007).

12. Chapter 121, Florida Statutes, contains the Florida Retirement System Act.

13. Petitioner has the burden of proving by a preponderance of the evidence that she did not violate the reemployment provisions of Chapter 121, Florida Statues. Wilson v. Department of Administration, Division of Retirement, 538 So. 2d 139, 141-42 (Fla. 4th DCA 1989); Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 788

    (Fla. 1st DCA 1981).

    
    

14. When a member of FRS retires, as in the instant case, there are statutory limitations upon that member returning to work with an employer in FRS.

15. Except for limited exceptions, a retired member of FRS is prohibited from receiving retirement benefits and a salary from an employer in FRS for a period of 12 months immediately subsequent to the date of retirement.

16. Subsection 121.091(9), Florida Statutes, provides in relevant part:

    EMPLOYMENT AFTER RETIREMENT; LIMITATION.—

    
    

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    (b)1. Any person who is retired under this chapter, . . . may be reemployed by any private or public employer after retirement and receive retirement benefits and compensation from his or her employer without any limitations, except that a person may not receive both a salary from reemployment with any agency participating in the Florida Retirement System and retirement benefits under this chapter for a period of 12 months immediately subsequent

    to the date of retirement. However, a DROP participant shall continue employment and receive a salary during the period of participation in the Deferred Retirement Option Program, as provided in

    subsection (13).

    
    

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    3. A district school board may reemploy a retired member as a substitute or hourly teacher, education paraprofessional, transportation assistant, bus driver, or food service worker on a noncontractual basis after he or she has been retired

    for 1 calendar month, in accordance with

    s. 121.021(39). A district school board may reemploy a retired member as instructional personnel, as defined in s. 1012.01(2)(a), on an annual contractual basis after he or she has been retired for 1 calendar month, in accordance with s. 121.021(39). (Emphasis added).

    
    

17. In addition, Subsection 121.091(13), Florida Statutes, provides that limitations are equally applicable to DROP participations. Subsection 121.091(13)(h), Florida Statutes, provides:

    Employment limitation after DROP participation.—Upon satisfying the definition of termination of employment as provided in s. 121.021(39)(b), DROP participants shall be subject to such reemployment limitations as other retirees. Reemployment restrictions applicable to retirees as provided in subsection (9) shall not apply to DROP participants until their employment and participation in the DROP are terminated.

18. The Legislature provided an exception for instructional personnel as defined in Subsection 1012.01(2)(a), Florida Statutes. The relevant provisions read:

    Definitions.—Specific definitions shall be

    as follows, and wherever such defined words or terms are used in the Florida K-20 Education Code, they shall be used as follows:

    
    

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    1. INSTRUCTIONAL PERSONNEL.— "Instructional personnel" means any K-12 staff member whose function includes the provision of direct instructional services to students. Instructional personnel also includes K-12 personnel whose functions provide direct support in the learning process of students. Included in the classification of instructional personnel are the following K-12 personnel:

       
       

       1. Classroom teachers.—Classroom teachers are staff members assigned the professional activity of instructing students in courses in classroom situations, including basic instruction, exceptional student education, career education, and adult education, including substitute teachers. . .

          
          

       2. Student personnel services.—Student personnel services include staff members responsible for: advising students with regard to their abilities and aptitudes, educational and occupational opportunities, and personal and social adjustments; providing placement services; performing educational evaluations; and similar functions. Included in this classification are media specialists, social workers, career specialists, and school psychologists.

          c) Librarians/media specialists.— Librarians/media specialists are staff members responsible for providing school library media services. These employees are responsible for evaluating, selecting, organizing, and managing media and technology resources, equipment, and related systems; facilitating access to information resources beyond the school; working with teachers to make resources available in the instructional programs; assisting teachers and students in media productions; and instructing students in the location and use of information resources. (Emphasis added.)

          
          

19. In Subsection 121.091(9)(b)3., Florida Statutes, the Legislature clearly expressed its intent to allow an exception to the return-to-work rule. The provision specifically states that instructional personnel, as defined in Subsection 1012.01(2)(a), Florida Statutes, could return as contract employees within 12 months of retirement. There is no other class of employees to which the exception applies. As the Courts of Florida have frequently stated under the rule "expressio unius est exclusio alterious" (the expression of one thing is the exclusion of another), had the Legislature wanted to extend the exemption to media specialists, it would have included media specialists in its definition of instructional personnel in Subsection 1012.01(2)(2), Florida Statutes. Havoco of America, Ltd. v. Hill, 790 So. 2d 1018 (Fla. 2001); Young v. Progressive Southeastern Ins. Co., 753 So. 2d 80 (Fla. 2000);

    and St. John v. Coisman, 799 So. 2d 1110, 1113 (Fla. 5th DCA 2001).

20. Clearly, librarians/media specialists, as defined in Subsection 1012.01(2)(c), Florida Statutes, are not included in the exceptions set forth in Subsection 121.091(9)(b)3., Florida Statutes. However, in addition to being a media specialist, Petitioner is a classroom teacher as defined.

21. The controlling statutory definition does not give any consideration to the situation, as in the instant case, where the "instructional personnel" is classified as a media specialist, but also teaches in the classroom. The evidence is that she teaches one regular class a day; or, that 21 percent of Petitioner's workday is devoted to "the professional activity of instructing students in courses in classroom situations "

22. Even though Petitioner is classified as a "media specialist," the professional services she is rendering meet the definition of "classroom teacher" in Subsection 1012.01(2)(a), Florida Statutes, making her eligible as an exception to the "return-to-work" rule as set forth in Subsection 121.091(9)(b)3., Florida Statutes.

23. The controlling statute describes the exempted activity, "the professional activity of instructing students in courses in classroom situations . . .," it does not quantify it, requiring that the exempted activity performed be a certain

number of classes or hours per day, nor does it insist that the exempted instructional personnel hold the position title "classroom teacher." Had the legislature contemplated a minimum qualification or the position status, the statute would have announced it.

RECOMMENDATION

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

RECOMMENDED that Respondent, Department of Management Services, Division of Retirement, enter a final order finding that Petitioner, Barbara L. Hughes, meets the definition of "classroom teacher" in Subsection 1012.01(2)(a), Florida Statutes, and that she is eligible for retirement payments from August 2007 to present.

DONE AND ENTERED this 7th day of February, 2008, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 7th day of February, 2008.

COPIES FURNISHED:

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

Tallahassee, Florida 32399-0950

Barbara L. Hughes c/o Norman L. Hughes

Education Center of Southwest Florida, Inc.

Post Office Box 183 LaBelle, Florida 33975

Sarabeth Snuggs, Director Division of Retirement

Department of Management Services Post Office Box 9000

Tallahassee, Florida 32315-9000

John Brenneis, 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 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: 07-004705

Orders for Case No: 07-004705