The Issue The questions posed by this dispute involve the assertion by Petitioner that she is entitled to be credited with retirement benefits as an employee who is certified as "high hazard" for the period July 1, 1965, through November 30, 1970. See Section 122.34, Florida Statutes. Further, Petitioner claims entitlement to credit while employed in an alleged capacity as "special risk" member of the Florida Retirement System for the period December 1, 1970, through March 31, 1980. See Chapter 121, Florida Statutes. Respondent does not believe Petitioner is entitled to recognition in the "high hazard" and "special risk" categories for the referenced periods. Thus, the need for the formal Section 120.57(1), Florida Statutes hearing.
Findings Of Fact On July 1, 1965, Petitioner, Judy Wyllie, whose name at that time was Judy L. Benton, made application for employment with the Volusia County, Florida, Sheriff's Office. On that date, Petitioner was 18 years of age, having been born on May 3, 1947. Petitioner has also been referred to as Judy L. Weir. The specific position being applied for on July 1, 1965, was related to secretarial work. She was hired on July 1, 1965, as a civil clerk in the sheriff's office, not as a law enforcement officer. On December 15, 1969, the Petitioner resigned her position with the sheriff's office. She returned in January 1970 and has continued her employment. Upon her resignation she was refunded the amount paid into her retirement account and has yet to repay the reimbursed amount into the Florida Retirement System and cannot claim credit for service from July 1, 1965, until the date of resignation on December 15, 1969. Between 1969 and 1912, Petitioner was assigned the position of Clerk IV, a designation within the personnel system of Volusia County, Florida. That system establishes job positions and specifications for the Volusia County Sheriff's Office at present and at relevant times contemplated by this inquiry beginning in 1971. The Clerk IV position involved the supervision of clerical work done-within the Civil Division of the sheriff's office by clerks who maintain records and reports. Petitioner answered public questions and maintained a payroll. Budget matters, including purchasing, were a part of her responsibility. She maintained liaison between the courts and attorneys of Volusia County in civil court matters. The Civil Division of the sheriff's office included a position known as Civil Deputy. This position of Civil Deputy was a recognized position within the Volusia County Personnel System. Those employees who were Civil Deputies worked in public safety, serving civil court papers to people who were expected to appear in court as defendants or witnesses. In pursuing their duties related to civil law, these employees would serve writs of possession, writs of replevin, writs of attachment and writs of execution. Petitioner, in her position as Clerk IV, supervised the Civil Deputies. On March 13, 1970, Petitioner was designated the rank of Lieutenant within the Volusia County Sheriff's Office. This designation was made by Sheriff Edwin Howland Duff II. It was not a designation which had been accepted by the Volusia County Personnel System. In effect, this designation of Lieutenant was an in-house arrangement by which Sheriff Duff attempted to promote the acceptance of Petitioner's supervisory decisions and her authority to carry out her functions within the Civil Section of the sheriff's office. This arrangement ceased in 1977. Over time the sheriff sought to have Petitioner's position upgraded, and on November 11, 1975, Petitioner was promoted to the position of Civi1 Court Records Supervisor. This is a designation by the Volusia County Personnel System, and the position is described as being one involving technical, clerical and supervisory work of some complexity involving the coordination and supervision of civil court records within the sheriff's office. This designation gave illustrations of the duties, to include review, control and writing of refund checks to attorneys and the general public related to overpayment of fees, etc. It involved maintaining liaison between the Civil Division of the sheriff's office and the courts and attorneys within the county. It also involved assistance in the preparation of the budget for that division. The position specifications further describe the involvement with certain writs such as replevin and habeas corpus. In her new position, Petitioner continued to be the supervisor of the Civil Deputies. During the pendency of Petitioner's service within the Civil Division of the sheriff's office, in the capacity described, and while other personnel known as Civil Deputies were performing their function, there was another personnel position within Volusia County which was known as Deputy Sheriff. The Deputy Sheriff position involved work of a general public safety nature with the primary emphasis being related to protection of life and property and the routine enforcement of laws and regulations. Among the duties of those persons serving as Deputy Sheriffs was the patrolling of parks, building, installations and property in areas where the deputies were on foot or operating out of police vehicles. The task of these law enforcement officers was to preserve law and order and to prevent damage to property via fire, theft or vandalism. They were to respond to calls and complaints involving automobile accidents, domestic disturbances and misdemeanors or felonies. They were entitled to serve writs, warrants, summons and civil papers. In addition to enforcing traffic laws and regulations, the deputies were to conduct preliminary investigations involving crime or accident, to obtain witnesses and evidence and to make arrests and transport or escort prisoners to and from confinement areas. They were also to testify in court related to arrests that had been made. While employed with the Civil Division of the sheriff's office in Volusia County, Petitioner was required to participate in a study involving the examination of the duties of Civil Court Records Supervisor. This study took place in 1978. In this study there are identified duties which are synonymous with the job description for Civil Court Records Supervisor as previously described. The study also sets forth that ten per cent of the job function involved keeping up with civil laws by reading statute books, sheriff's manuals and sheriffs association literature; attending civil seminars a couple of times a year for schooling; and by assisting in difficult levies where inventorying was required or involving sheriff's sales and taking up money and writing receipts. Nowhere does this study, the official description of her employment as Clerk IV or Civil Court Records Supervisor, suggest that any significant amount of time was devoted to duties which are traditionally related to law enforcement, as described in Chapter 121 and 122, Florida Statutes, Chapter 22-B, Florida Administrative code, and the description of law enforcement activities related to Deputy Sheriffs within the Volusia County Personnel System. Effective April 1, 1980, Petitioner was serving and continues to serve as a supervisor of a new position within the Volusia County Personnel System known as Judicial Support Officer. The individuals who serve in that capacity had been recognized as "special risk'' members of the Florida Retirement System, as envisioned by Section 121.515, Florida Statutes, commencing April 1, l980. Those persons are required to be certified in compliance with Section 943.1395, Florida Statutes, pertaining to police minimum standards of the Florida Criminal Justice Standards and Training Commission for police officers, in that it is necessary for those persons in the position of Judicial Support Officer to obtain certification within the year of appointment to that position. The Judicial Support Officers function as bailiffs for the circuit court; guard prisoners on the way to and from courtrooms; call defendants, plaintiffs and witnesses before the judge; escort prisoners who have been convicted to the court cashier and verify payments of fines before prisoners are released; transport prisoners from one destination to another to guard against escape; return prisoners by the extradition process from other states, serve warrants, subpoenas or other court documents as required; and perform other related duties. The duties of the Judicial Support Officer contemplate involvement with criminal law matters as well as civil law proceedings. These functions are akin to those activities set out in Section 121.0515, Florida Statutes, pertaining to criteria for recognition as special risk's members within the Florida Retirement System. It is for this reason that the Judicial Support Officers and the Petitioner, as supervisor to those persons who serve as Judicial Support Officers, were recognized by Respondent as "special risk" members of the retirement system effective April 1, 1980. With the advent of the Judicial Support Officer position in the Volusia County Civil Service, the Civil Deputy positions were phased out. By application made to the State of Florida, Florida Retirement System, Petitioner sought recognition and credit for service as a "high hazard" employee as contemplated by Section 122.34, Florida Statutes, in the period July 1, 1965, through November 30, 1970. Additionally, she has sought recognition and credit as a "special risk" member of the retirement system for the period December 1, 1970, through March 31, 1980, as contemplated by Chapter 121, Florida Statutes. Various documents have been submitted in support of her claim to entitlement to an accelerated accumulation of retirement credits gained by persons who are recognized in the "high hazard" and "special risk" categories. Those documents were examined and commented on by officials within the Respondent agency, and the State Retirement Director, A. J. McMullian III, concluded that the request for recognition should not be granted and made known this position in correspondence of June 28, 1985, directed to the Petitioner. This intent to deny a claim for credits in the subject categories led the Petitioner to request a hearing pursuant to Chapter 120, Florida Statutes. This request for hearing was made, on July 11, 1985. It was followed by the formal petition seeking relief and recognition of the credit for service in the disputed categories. The formal petition is dated September 5, 1985. Following the referral of this action to the Division of Administrative Hearings, a formal Section 120.57(1), Florida Statutes hearing was held on the dates reflected in this recommended order. In advancing her claims for further credit in the "special risk" category and in an attempt to be recognized in the "high hazard" category, Petitioner points out the fact that she has been provided a badge from the sheriff's office, a badge holder, uniforms and other accouterments which law enforcement officers display. She occasionally wears a uniform which indicates affiliation with the sheriff's office of Volusia County. She has a pistol and has participated in proficiency training for the use of that pistol. Petitioner has satisfied the requirements of Chapter 943, Florida Statutes, pertaining to the recognition by the police standards certifying agency. This recognition was pursuant to "grandfathering" at the request of former Sheriff Rodney B. Thursby, who was the sheriff in Volusia County from January 1, 1957, up to January 1, 1969. As a member of the sheriff's office, Petitioner has been bonded. Petitioner, during the course of her employment with the Civil Division of the sheriff's office, has had occasion to act as a matron of female prisoners, has transported prisoners in her custody, has made arrests, and has been involved with the transportation of incompetent persons and since 1969 has been involved with field work in which she has assisted in carrying out writs or orders of court involving arrest, execution and replevin. In her duties, she has detained individuals in a detention facility. Typically, this activity occurs when females or children are involved or families are to be evicted from their residence. In carrying out her function related to civil proceedings, it could be expected that in some instances people would react violently and at times must be taken into custody. Examples of Petitioner's civil arrests were presented in the hearing. This arrest function and other functions described in the preceding paragraph are rare and certainly can not be described as routine. In performing these duties, Petitioner has carried her badge and gun. Although Petitioner seeks recognition for service under the "high hazard" category, the Volusia County Sheriff's Office has never submitted her name for certification as a person who performed duties according to rule, order or established custom as a full-time criminal law enforcement officer, nor has this certification been made by anyone within the general government of Volusia County. For the period December 1, 1970, to October 1, 1978, Petitioner's employer has not sought recognition of her service as a "special risk.' member of the retirement system. Finally, there has been no demonstration of any payment of additional funds into the State and County Retirement System to defray the expense of membership in the "high hazard" category. During the period of time that remains in dispute, July 1, 1965, through March 31, 1980, as stated, Petitioner was seldom involved in arresting persons either in her individual capacity or in assisting or supervising others. Petitioner, in that time frame, cannot be considered to have as her primary and duties and responsibilities the apprehension of law violators or suspected law violators, either in the sense of the job specifications pertaining to her clerical and supervisory functions within the Civil Division of the sheriff's office or actual day to day activities in those roles. Nor can it be found that her primary duties or responsibilities were that of maintaining physical custody of prisoners within a prison or any other form of detention facility or accompanying prisoners in transport of those prisoners or other persons held in custody. Petitioner's occasional acquaintanceship with law enforcement duties is similar to persons who are recognized under Section 122.34, Florida Statutes, as "high hazard" and Section 121.0515, Florida Statutes, and Chapter 22-B, Florida Administrative Code, pertaining to "special risk." Nonetheless, Petitioner's primary duties have never related to those traditional law enforcement practices of pursuit, apprehension or arrest of law violators or suspected law violators. Her primary obligation is that of administrative support involving accounting, purchasing, legal and personnel matters. Her law enforcement function is incidental as would be incumbent upon all sworn officers. This role as law enforcement officer in the time frame was not an essential part of her job. The Civil Deputies whom the Petitioner supervised, in furtherance of the job description, wore uniforms and related to civil matters, made arrests of persons who did not pay child support and transported those individuals to jail. The Civil Deputies also detained persons who were in their custody and transported prisoners and mental incompetents to receiving facilities. The Civil Deputies were involved with the civil process service, not criminal process service. The Civil Deputies bore firearms during the relevant period. Typically, the Civil Deputies would make one or two arrests per month, and on occasion as many as three or four arrests. As described by the Civil Deputies who testified in the course of the hearing, very little time was spent by the Petitioner in supervising arrest functions in the field by Civil Deputies. The traditional law enforcement functions of the Civil Deputies in the relevant period before April 1, 1980, were incidental to their job position. In trying to make a retrospective examination of the entitlement of the Petitioner or others in similar circumstance who have sought recognition as "special risk" members who are employed in law enforcement, for the period December 1, 1970, to October 1, 1978, Respondent has a policy of referring to the then-existing provision of Rule 22B-1.05, Florida Administrative Code, and its amendments made in that time period. This choice is made in an effort to have available the same criteria that were utilized in assessing those applicants for "special risk" membership while the rules were operative, to insure equal treatment of the applicants, such as Petitioner, who make application following the repeal of those intervening rule provisions. This policy choice is administratively sound and affords due process.
The Issue The issue in this case is whether or not the position Petitioner held with Brevard County, Florida, from December 5, 2005, to October 31, 2006, entitled him to service credit in the Florida Retirement System (FRS).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is a member of the FRS. He first worked for the Florida Department of Transportation in October 1976 and remained with the Department of Transportation until January 1980, when he began working for Osceola County, Florida. He worked for Osceola County until May 1990, when he began working for Brevard County, Florida. He worked for Brevard County until 2004. At the time he was laid off by Brevard County, Petitioner had 25.5 years of credible service in the FRS. Petitioner's expressed desire was to complete 30 years of credible service in the FRS. To that end, he met with Brevard County officials seeking re-employment in a position that would qualify him for additional credible service. In October 2005, Petitioner met with several Brevard County employees, including the county manager and Human Resource director, seeking a job that would enable him to get 4.5 more years of credible FRS service. As a result of his meetings and efforts, on October 28, 2005, Petitioner was offered a part-time position as a park ranger with duties that included "monitoring any scheduled activities at Rodes [sic] Park on Friday and Saturday evenings from approximately 9:00 p.m. to 1:00 a.m., to ensure orderly behavior of park patrons." Accepting the offered position, Petitioner was employed as a Park Ranger I, with the stated job description. The following information appears on a Brevard County document titled "Authorization to Place Special Services Employee on Payroll" which memorialized his employment: Working Title: Park Ranger I, Part Time (less than 40 hrs per week); Hire Date: 12/03/05; and How many pay periods do you anticipate this job will last? 19 (PP) 38wks. Also noted on this document, "Enroll in FRS 95HA." An inter-office memorandum dated November 17, 2005, from Jeff Whitehead, south area parks operations manager to Peggy Busacca, county manager, regarding Petitioner's hiring, states in part: "This position will require an individual that has an extremely flexible schedule and that can be asked, at times, to report with very little notice. Furthermore, the majority of shifts will be on Friday and Saturday evenings, generally from 8:00 p.m. to 1:00 a.m. . . In addition, providing Mr. Bright with this opportunity will render him eligible to collect his retirement benefits." Frank Abbate, Brevard County Human Resource director, emailed Petitioner on December 19, 2005, stating, in part: "I'm glad to see that . . . you were able to get a position with Parks and Recreation that meets both[,] one of their Department's needs[,] as well as your interest in continuing to earn FRS service credits. I wish you the best and look forward to your achieving your goal of thirty years service under FRS!" Brevard County knew that Petitioner's employment was conditioned on his inclusion as a participant in the FRS, and, in fact, enrolled him in the FRS by making appropriate contributions on his behalf to FRS. At no time did Brevard County advise Petitioner that he was not participating in the FRS. Petitioner relied on Brevard County's assertion that he was an enrolled member of the FRS. Petitioner was hired with the mutual expectation that he would be available to work at Rhodes Park on any Friday and Saturday nights from 8:00 p.m. to 1:00 a.m. and that the employment would continue for 4.5 years so Petitioner would be able to obtain 30 years of credible FRS service. There was nothing "temporary" in the expectation of Petitioner and his employer regarding the duration of employment. During the period in question, December 2005 through October 2006, Petitioner worked at least one day per month. Petitioner's employment was continuing, not temporary, on-call, in that he was scheduled to be available to work at his assigned responsibility every Friday and Saturday. While Petitioner did not work every Friday and Saturday night, Petitioner did, in fact, work every Friday and Saturday night during the period in question, as requested by his employer, Brevard County. That is, he never failed to perform his assigned duties when requested. Petitioner was finally notified on November 7, 2007, that he was ineligible for participation in FRS. During this nearly two-year period of employment, Petitioner satisfactorily performed his employment responsibilities.
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, Thomas L. Bright, is eligible for participation in the Florida Retirement System, while employed by Brevard County from December 3, 2005, through October 31, 2006. DONE AND ENTERED this 10th day of October, 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 10th day of October, 2008. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Brian D. Solomon, Esquire Brian D. Solomon, P.L. 101 East 13th Street St. Cloud, Florida 34769 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
The Issue Whether or not the Respondent, State of Florida, Department of Administration, Division of Retirement, was in error in refusing to allow the Petitioner, John S. Forster, Jr., a/k/a John S. Forster to repay his contributions to the Florida Retirement Systems after he had requested and been granted a refund of his contributions made to the Florida Retirement Systems.
Findings Of Fact John S. Forster, Jr. applied for a job with the University of North Florida, Jacksonville, Florida. That application was under the name John S. Forster. He was given employment by the University and commenced the job. His position was as Store Keeper II. That job involved the receiving and distribution of incoming materials which the University was purchasing. Sometime in the middle to late part of February, 1976 the Petitioner suffered an injury in his employment and was required to be away from his work. During the course of the treatment of the Petitioner and subsequent contact by the employer, it was discovered that the Petitioner had on several occasions given false answers on his employment applications and medical questionnaires. Specifically, in answering questions propounded to him about former serious illness or operations, he had answered in the negative when in fact he had had a back condition which required surgery. This finding is borne out by the Respondent's Exhibits 2, 3 and 4, admitted into evidence, which are employment questionnaires and medical questionnaires completed by the petitioner. After the discovery of the false answers and subsequent to the Petitioner having been away from his employment for an extended period of time, a decision was made to terminate the Petitioner from his employment with the University of North Florida. Upon receiving the notice of termination the Petitioner had no further contact with the University of North Florida and did not attend any form of exit interview, as is the policy of the University. However, prior to his employment, the University had given an orientation session in which he was made familiar with the right that he had under the Florida Retirement Systems, to include the distribution of certain brochures of information. It is not clear how the Petitioner obtained the form, but he did obtain a form which is a form utilized for requesting refund of contributions to the Florida Retirement Systems. This form may be found as Respondent's Exhibit 1, admitted into evidence. The form was completed in its entirety by the Petitioner, with the exception of the portions which are to be completed by the last Florida employer. The portions to be completed by the Florida employer were not completed. effectively what the form did was to instruct the, Petitioner that his application for refund would waive, for him, his heirs and assignees all rights, title and interest in the Florida Retirement Systems. This waiver constitutes a waiver in law on the question of any rights the Petitioner, his heirs and assignees would have under the Florida Retirement Systems. The waiver becomes significant because the Petitioner went to a social security office and discovered that he would possibly be entitled to certain benefits due to the injury he suffered on the job with the University of North Florida, and those benefits would accrue to the Petitioner as a member of the Florida Retirement Systems. Notwithstanding that possible right to recovery, the Petitioner may not recover any compensation from the Florida Retirement Systems, due to his voluntary withdrawal from the Florida Retirement Systems by his refund request dated May 7, 1976. This withdrawal was made without coercion and without the knowledge of the University of North Florida and without the responsibility on the Dart of the University of North Florida or the Florida Division of Retirement to give any instructions on the implications of such a refund being granted. The Petitioner now has received his contributions from the Florida Retirement Systems and is not entitled to further relief as petitioned for.
Recommendation It is recommended that the Petitioner, John S. Forster, Jr. also known as John S. Forster, be denied any right to repay his contributions into the Florida Retirement Systems as a means to receiving compensation on the injury received while employed by the University of North Florida. DONE AND ENTERED this 17th day of April, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John S. Forster, Jr. 11615 Jonathan Road Jacksonville, Florida 32225 Stephen S. Mathues, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207-C - Box 81 Tallahassee, Florida 32303
Findings Of Fact Sally T. Sperling commenced teaching for the Leon County School Board in 1969 as an elementary teacher at Sabal Palm Elementary School. Following maternity leave and absences to continue her education, Mrs. Sperling returned to the Leon County School System in 1971 as a full-time teacher and subsequently gained continuing contract status before resigning in 1976. In 1978 Petitioner submitted an application (Exhibit 5) for part-time employment with the Leon County School System in which she indicated a desire to work "perhaps, three days per week. She was employed in the Adult Education Program at Lively Vocational-Technical School in Tallahassee teaching remedial reading. The form contract used by the Leon County School Board for Petitioner's employment is the same that is used for all instructional personnel. The contract purported to run for one year and Petitioner was paid on an hourly basis, with no minimum or maximum hours specified. Full-time teachers are hired on an annual basis. Some of the teachers in the Adult Education Program are full-time teachers and are on annual or continuing contracts. Most of the teachers in the Adult Education Programs are part-time teachers and are paid only for the hours they teach. Petitioner taught remedial reading classes and sufficient interest in this course has been maintained so the program has continued semester after semester for the four years Petitioner has taught adult education courses. Other Adult Education Programs in which sufficient interest has not developed have been dropped. Funding for Adult Education Programs depends upon the number of students attending the classes. If this number drops below the number required to keep the course self-sufficient, the course will be dropped. In such a case the teacher of the course will not remain on the Leon County payroll, as no hours will be devoted to teaching this course. Unless an actual course is taught, the part-time teacher is not paid. Teachers on annual contracts are paid for the full year regardless of the number of hours of classes taught. At the time Petitioner was hired she was given a packet of information (Exhibit 7) but was not specifically told that part-time teachers are not eligible for the Florida Retirement System. During the four years Petitioner has been employed as a part-time teacher she has had no social security deductions taken from her pay and has earned no annual or sick leave. Pursuant to an agreement between the state and federal governments all members of the Florida Retirement System are covered by social security and FICA deductions are taken from their pay. This deduction is indicated on the check stub given to the employee with each pay check. State employees not under the Florida Retirement System and not specifically made parts of the Social Security System are not covered by social security. Full-time teachers are considered salaried employees holding a regularly established position. They are paid from funds provided in the "100" account. Part-time employees are designated as Other Personal Services (OPS) and are paid from funds in the "700" account. These accounting codes are established by the Department of Education to provide uniformity in accounting in the various school systems. The accounting code designation from which fund the employee is paid gives a quick reference to the status of the employee. When the pay records show Petitioner is paid from "751" funds, there will be no state retirement or FICA contributions from the code that disburses those funds. When the Florida Retirement System replaced older state retirement systems, some confusion developed regarding the status of personnel hired temporarily and retained on the payroll for an extended period. This confusion carried over to part-time teachers in the Adult Education Programs throughout the state. Some of the counties placed these part-time teachers in the Florida Retirement System where they have been covered for nearly ten years. The Division of Retirement is in the process of removing those people from the retirement system. At the time Petitioner wads hired she did not believe she was eligible for the Florida Retirement System and no FICA deductions were ever taken from her pay. After a visiting friend advised her she might be eligible for the Florida Retirement System Petitioner initiated the inquiries that led to these proceedings.
The Issue Whether Petitioner, Harry Marcus (“Petitioner”), timely claimed creditable service for retirement benefits pursuant to section 121.085, Florida Statutes, and whether the adult education teacher position Petitioner held, for which he seeks creditable service for retirement benefits, was a temporary position.
Findings Of Fact The Florida Retirement System (“FRS”) is a public retirement system as defined by Florida law. Respondent is charged with managing, governing, and administering the FRS. On February 12, 1979, Petitioner began employment with the Florida Department of Labor & Employment Security (“FDLES”), an FRS-participating employer. By reason of this employment, Petitioner was enrolled in the FRS, and FDLES made contributions to the FRS on his behalf. On January 4, 1991, Petitioner voluntarily resigned his employment with FDLES. At that time, Petitioner had 11 years and 11 months creditable service with FRS based on his employment with FDLES. On January 23, 1991, Petitioner submitted a Florida Retirement System Application for Service Retirement to the State of Florida, Department of Administration, Division of Retirement (“DOA Division of Retirement”).3/ On February 28, 1991, Petitioner submitted a request to the DOA Division of Retirement, that his application for service retirement be withdrawn. On March 12, 1991, the DOA Division of Retirement canceled Petitioner’s application for service retirement. At that time, the DOA Division of Retirement advised Petitioner that: Your retirement date will be the first of the month following your termination date if your retirement application is received by us within 30 days after your termination date. If the application is received after the 30 days, your retirement date will be the first of the month following the month we receive it. On September 27, 1993, Petitioner began employment with the Broward County, Florida, School Board (“School Board”) as a part-time, temporary, adult vocational education instructor at “Whispering Pines.” Whispering Pines is an “off-campus” adult education program. The School Board is an FRS-participating employer. Petitioner was employed by the School Board from September 27, 1993, until April 2009, when he voluntarily resigned his employment with the School Board. Throughout Petitioner’s entire employment with the School Board, he was compensated on an hourly basis and held the same position, that of a part-time, temporary, adult vocational education instructor. Each school year throughout his employment with the School Board, Petitioner signed an Agreement for Part-Time Instruction in Vocational, Adult and Community Education. By signing the agreement, Petitioner acknowledged that his employment was part-time, temporary, and subject to School Board Policy 6Gx6-4107. Each of the agreements for part-time instruction that Petitioner signed, provided that: THE ADMINISTRATOR MAY TERMINATE THIS AGREEMENT UPON NOTICE. This appointment is contingent upon sufficient enrollment and attendance in the course assigned or the class will be cancelled and this agreement shall be null and void. The instructor’s signature below indicates acceptance of the appointment subject to all terms and conditions of Board Policy 6Gx6- 4107 which is printed on the reverse side of this agreement. * * * THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA 6Gx6-4107 6Gx6-4107 PART-TIME, TEMPORARY INSTRUCTIONAL PERSONNEL IN VOCATIONAL, ADULT, AND COMMUNITY EDUCATION PROGRAMS EMPLOYMENT OF PART-TIME, TEMPORARY INSTRUCTIONAL PERSONNEL IN VOCATIONAL, ADULT, AND COMMUNITY EDUCATION PROGRAMS SHALL BE APPROVED, ASSIGNED AND PAID IN ACCORDANCE WITH THE RULES. AUTHORITY: F.S. 230.22(1)(2) Policy Adopted: 5/3/84 Rules The conditions of employment listed herein apply only to those instructional personnel employed on a part-time, temporary basis to teach courses on a course by course basis or to provide part-time instructional support to programs in post-secondary adult vocational education, adult general education, Community Instructional Services, and education for personal improvement. Part-time, temporary teachers shall have no guarantee or expectation of continued employment and may be terminated upon written notice by the location administrator. A part-time, temporary employee must meet the same employment criteria as full-time employees with the exception that full-time or part-time teaching certificates may be accepted. Community Instructional Services and Education for Personal Improvement teachers need not be certified. The superintendent is authorized to appoint personnel to positions covered by this policy pending action by the School Board at its next regular or special Board meeting. The principal (or administrative designee) shall recommend for employment only persons who have completed all requirements for the recommended position. Instructors appointed to teach courses requiring certification who are approved on an “applied for” status must file a valid Florida Teacher’s Certificate not later than ninety (90) days from the date of employment. Failure to provide such certificate within the specified time may result in [rescission] of the appointment. Part-time, temporary teachers shall be paid an hourly salary based upon the Salary Schedule adopted for part-time temporary employees. Part-time teaching experience cannot be used toward experience credit on the full- time Teacher Salary Schedule. Part-time, temporary teachers shall not be eligible for a continuing contract or for a Professional Service Contract and are not entitled to fringe benefits. As a part-time, temporary employee, Petitioner did not hold a regularly-established position with the School Board. Petitioner’s employment with the School Board was term-to-term, and he had no expectation of continued employment. Because Petitioner held a temporary position, he is not eligible for service credit in the FRS based on his employment with the School Board. Even though Petitioner is not entitled to eligible service credit in the FRS based on his employment with the School Board, he is eligible to participate in the FICA Alternative Plan, which is separate and distinct from the FRS. The FICA Alternative Plan is designed for individuals, such as Petitioner, who held temporary positions and, therefore, are ineligible for service credit in the FRS. Petitioner participated in the FICA Alternative Plan through his employment with the School Board. As a participant in the FICA Alternative Plan, Petitioner contributed to the plan, the School Board did not contribute to the plan, and Petitioner was prohibited from participating in the FRS. In 2008, Petitioner requested that Respondent review his service with the School Board to determine if he is eligible for coverage under the FRS based on his employment with the School Board. On June 23, 2008, Respondent informed Petitioner that he is not eligible for creditable service based on the fact that he was employed by the School Board as a part-time, temporary employee. No clear point-of-entry was provided by Respondent at that time for Petitioner to institute formal proceedings to challenge the decision. On March 9, 2009, Petitioner submitted a Florida Retirement System Pension Plan Application for Service Retirement to Respondent. On March 11, 2009, Respondent wrote to Petitioner acknowledging the receipt of his service retirement application, and an effective retirement date of April 1, 2009. Respondent also provided Petitioner with an estimate of retirement benefits, which is based on an employment termination date of January 4, 1991, and Petitioner’s 11.91 years of service with FDLES. Subsequently, Petitioner was added to the retirement payroll effective April 2009, and he has received monthly retirement benefits based on his 11 years and 11 months of service with FDLES. The evidence adduced at the final hearing established that Petitioner timely claimed creditable service for retirement benefits pursuant to section 121.085. Petitioner first sought creditable service for retirement benefits in 2008, based on his employment with the School Board. However, Petitioner did not retire from the School Board until 2009. Nevertheless, Petitioner is not eligible for creditable service for his years of employment with the School Board because his employment with the School Board was in the part-time, temporary position of an adult vocational education instructor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Management Services, Division of Retirement, concluding that Petitioner is not eligible for creditable service for his employment with the School Board. DONE AND ENTERED this 28th day of August, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2014.
