The Issue WHETHER CHARLES OTERO'S EMPLOYMENT AS A PART TIME TEACHER FOR THE HILLSBOROUGH COUNTY SCHOOL BOARD BETWEEN 1965 AND 1972 IS CREDITABLE SERVICE UNDER THE FLORIDA RETIREMENT SYSTEM. There was some discussion at the commencement of the hearing as to whether Otero's petition for formal hearing properly raised his claim that his service is creditable both as "past" and as "prior" service. The terms "past," "prior" and "previous" service are each separate terms of art defined in Rule 225-6, Florida Administrative Code. While Otero's petition requests permission to purchase Florida Retirement System ("FRS") credit for "prior" service, his petition also frames the ultimate issue in the broader terms as expressed above. (See Petition, paragraphs 4 and 5.) The Division's unilateral Pre-hearing Statement filed on October 29, 1986, paragraph f., states: "At issue is whether or not Petitioner should be permitted to purchase the requested employment time as creditable service in the Florida Retirement System." The Division has not suggested that a more specific request for "past" credit would have resulted in any different response. The broader issue is, therefore, considered here in the interest of economy.
Findings Of Fact In 1965, Charles Otero was an inspector for the Tampa Police Department. Through a joint effort of the Police Department and the Hillsborough County School District a unique high school course curriculum was developed to assist youths who were interested in pursuing careers in law enforcement. A survey was conducted and some preliminary recruiting revealed sufficient student interest to include the course as an elective at Leto Comprehensive High School in Tampa, Florida. The curriculum was divided into two levels: Law Enforcement I and Law Enforcement II. A student enrolling in Law Enforcement I had to be in 11th grade and be free of any physical impediments to a future law enforcement career. Law Enforcement I consisted of two hours instruction a day (one hour in the classroom and one hour of physical education), five days a week. The students who successfully completed this level were expected to go on to Law Enforcement II in the 12th grade. This course was conducted one hour a day, five days a week. Students were required to complete the first level before enrolling in Law Enforcement II. (Testimony of Otero and Farmer.) Charles Otero was hired as a part-time instructor for the Hillsborough County School District in September 1965. He began teaching the new course, Law Enforcement I, at Leto Comprehensive High School, two hours a day, five days a week for the entire school year. The following year, he taught both Law Enforcement I and II, for a total of three hours a day, five days a week. Without interruption, Otero continued teaching the courses at Leto through the 1968/1969 school year. He taught the same courses at Blake High School during the 1969/1970 school year, and from August 1970 until June 1974, he taught the same courses at the Hillsborough County Evening Vocational Center. He resigned in 1974 to become Police Chief for the City of Tampa. (Testimony of Otero, Mahin, Farmer and Scaglione). For each school year from 1965 until 1974, Charles Otero was hired under an annual part-time contract for instructional staff. The three contracts placed in evidence as Petitioner's Exhibits #4, #5 and #6 are typical of the forms used by Hillsborough County School District during the relevant period. Each contract specifies an hourly rate and provides that the hours of instruction are based upon the classes offered for which the teacher is qualified and assigned to teach by the county superintendent or his designee. The contract also provides for termination at will by either party upon written notice to the other. This option was not exercised during the relevant period. Otero was certified only as a part-time law enforcement teacher. (Testimony of Otero and Dobbins, Petitioner's Exhibits #4, #5 and #6). Otero's wages for teaching were paid from a Hillsborough County School District wages and salary account commonly used to pay part-time, adult education teachers. The adult education account was separate from the regular teachers' account. Otero was not paid from an OPS (other personnel services) account. (Testimony of Mann.) At the time that he was hired in 1965, both Otero and the Hillsborough County School District anticipated that the law enforcement courses would continue for at least two years, based on the survey and recruitment responses, and based on the expectation that the Level I students would go on to take the Law Enforcement II course. Since these were elective courses, the students were not required to enroll and if an insufficient number had enrolled, then Otero's courses would not have been taught. In fact, the courses continued and still continue today, with full-time teachers. (Testimony of Otero, Farmer, Scaglione and Dobbins.) Prior to December 1, 1970, full time instructional staff of the Hillsborough County School District participated in the teacher's retirement system under Chapter 238, Florida Statutes. On December 1, 1970, the FRS was created and the existing systems were closed out. Otero never participated in the teacher's retirement system, nor was he eligible for that system as a part- time teacher. In January 1972, he became a member of the FRS when the Hillsborough County School District commenced contributions on his behalf. Otero was re-employed by the Hillsborough County School Board in 1979, as Supervisor of Security and has been continually employed in that capacity on a full-time basis. He has likewise participated continually in the FRS since 1979. Otero conceded that his application to the Division indicating that he was seeking purchase of "refunded service" was in error. He had no "refunded service" under an existing system or the FRS. (Testimony of Otero and Sansom.) In June 1984, Charles Otero applied to the Division for an audit of his employment with the Hillsborough County School District to determine how much of his service would be creditable under the FRS. In July 1985, the Division responded that his employment as a part-time teacher from 1965 through 1971 is not creditable. (Testimony of Otero and Sansom, Petitioner's Exhibits #7 and #8.) The Division of Retirement is statutorily charged with administering the FRS and with determining what service may be claimed by a member as cieditable service in calculating that member's retirement benefits. Ruth Sansom has been Chief of the Division's Retirement Calculations Bureau since October 1980. She has been employed in some capacity in calculating retirement benefits for the teachers' retirement system and the FRS for 23 years. She is intimately familiar with the Division's policies. She has interpreted retirement laws and has assisted in policymaking and rulemaking for the Division. She is likewise familiar with Charles Otero's request and she testified regarding the bases for the Division's denial. The Division considered Otero's circumstances as similar to part-time adult education instructors who are paid on an hourly basis and whose students enroll on a voluntary basis. Those teachers who are hired with no contractual expectation of continuation are considered "temporary" instructional personnel and are not considered eligible for participation in the FRS. When examining a request for purchase of service, the Division applies the rules in effect at the time the request is made. The Division, however, applies those rules just as they would to an individual seeking enrollment in the FRS. The Division looks at the employment contract and legitimate expectations of the parties at the time of hire, rather than at the actual length of time the individual was employed. In other words, while the rule is applied retroactively, the employment circumstances of the individual are examined in a prospective manner. An individual is considered "temporary," even if employed for many years, so long as the employment relationship described at its commencement is merely temporary. A "part-time" teacher is not automatically "temporary." (Testimony of Sansom.) In making a determination regarding an individual's service credit the Division applies Chapter 121, Florida Statutes, Rules 225-1, 2 and 6, Florida Administrative Code, Memorandum 81-60 (Respondent's Exhibit #3) and a memorandum dated February 1, 1982 from A.J. McMullian, III. (Petitioner's Exhibit #9.)(Testimony of Sansom.)
Recommendation Based upon the foregoing, it is RECOMMENDED that: So long as the required contributions are made, Charles Otero's request to purchase "prior service" in the FRS for the period September 1965 to December 1970, be approved. Charles Otero's request for the period December 1970 until his enrollment in the FRS in 1972, be denied. DONE and RECOMMENDED this 5th day of December, 1986, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2487 The following constitutes my specific rulings on the proposed findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS OF FACT 1-3. Rejected as irrelevant. Adopted in paragraph 6. Adopted in paragraph 8. 6-10. Adopted in paragraph 6. 11. Adopted in paragraph 2. 12-13. Adopted in paragraph 1. Rejected as unnecessary. Adopted in paragraphs 1 and 2, except that the record establishes that he was hired effective September 28, 1965. (Petitioner's Exhibit 1.) Adopted in paragraph 5. 17-28. Adopted in summary form in paragraph 2. 29-35. Rejected as irrelevant. 36-38. Adopted in paragraph 4. 39-44. Adopted in summary form in paragraph 3. 45-46. Adopted in substance in paragraph 2. 47-49. Rejected as unnecessary. 50. Adopted in part in paragraph 2. The record is not clear that the Hillsborough County Evening Vocational Center was a "high school classroom." 51-56. Rejected as unnecessary. (See Conclusion of Law 7.) 57. Adopted in paragraph 2. 58-59. Adopted in substance in paragraph 5. 60-63. Adopted in paragraph 6. Rejected as unnecessary. Adopted in paragraph 7. 66-67. Adopted in paragraph 8. 68. Rejected as cumulative and unnecessary. 69-70. Adopted in substance in paragraph 8. RESPONDENT'S PROPOSED FINDINGS OF FACT 1-3. Adopted in paragraph 2. Adopted in paragraph 6. Adopted in paragraph 5. Adopted in paragraph 3. Adopted in paragraph 5. Adopted by implication in paragraphs 3 and 5. 9-13. Adopted in paragraphs 3 and 5. Adopted in part in paragraph 5 (as to continual nature of the course); otherwise rejected as unsubstantiated by the record. Rejected as unnecessary. Adopted in substance in paragraph 4. Adopted in paragraph 6. 18-21. Adopted in paragraphs 2 and 6. 22-23. Adopted in paragraph 7. Adopted in "Background" portion of the recommended order. Adopted in paragraph 8. COPIES FURNISHED: Edward P. de la Parte, Jr., Esquire Edward M. Chew, Esquire 705 East Kennedy Boulevard Tampa, Florida 33602 Stanley M. Danek, Esquire William A. Frieder, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street, Suite 207 Tallahassee, Florida 32303 Andrew J. McMullian, III, Director Division of Retirement Department of Administration Cedars Executive Center, Bldg. C Tallahassee, Florida 32303 Gilda H. Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
The Issue At issue in this proceeding is whether petitioner's rights and benefits under the Florida Retirement System are subject to forfeiture.
Findings Of Fact Petitioner, Robert T. Lacey (Lacey), was employed as the Director of the Criminal Justice Institute, Broward Community College, Broward County, Florida, from at least January 1, 1985, until his resignation in March 1986. At all times pertinent to this case, Broward Community College (BCC) was an employer which participated in the Florida Retirement System, and petitioner, while employed by BCC, was a member of the Florida Retirement System. On February 4, 1987, a Grand Jury impaneled in Broward County, Florida, returned a fourteen (14) count true bill of indictment against Lacey. The matter was ultimately assigned Case No. 87-2056CFA, Circuit Court, Broward County, Florida. Pertinent to this case are Counts I-XII of the indictment, one count for each of the calendar months of 1985 (January through December 1985). Each count charges that Lacey did, while employed by BCC that year, commit the following acts each month: . . . unlawfully and knowingly obtain or endeavor to obtain the property of Broward Community College, to wit: United States Currency, services and/or material, of a value of one hundred dollars ($100.00) or more, with the intent to permanently or temporarily deprive Broward Community College of a right to the property or a benefit thereof, or to appropriate the property to his own use or the use of any person not entitled thereto, contrary to F.S. 812.014(1)(a)., and (1)(b)., and F.S. 812.014(2)(b). The gravamen of such charges was the assertion that while employed as director of the Criminal Justice Institute, an entity within Broward Community College, Lacy used materials, time and personnel to benefit him personally in his consulting business. On February 25, 1988, following a jury trial, the jury returned a verdict of guilty of grand theft, as alleged in Counts I-XII of the indictment, and not guilty as to Counts XIII and XIV of the indictment. Although found guilty by a verdict of the jury, the court withheld adjudication as to each count, placed Lacey on probation for a period of three years, ordered Lacey to pay $3,000 in restitution to BCC, and ordered Lacey to perform 200 hours of community service. Lacey's post trial motions for arrest of judgment, new trial, and renewed motion for judgment of acquittal were denied by the court. Following the true bill of indictment that issued February 4, 1987, Lacey was also charged by direct information filed April 21, 1987, in the Circuit Court, Broward County, Florida, Case No.87-6744CFA, with two counts of official misconduct (Counts I and III), one count of petit theft (Count II), and one count of grand theft (Count IV). Pertinent to this case, Count I of the information charged that on or about September 5, 1985, Lacey did, while a public servant, to wit: . . . an employee of Broward Community College . . . did then and there unlawfully and knowingly falsify, or cause another to falsify, an official record or official document, to-wit: a Broward Community College form entitled "STAFF AND PROGRAM DEVELOPMENT COURSE APPROVAL FORM," with the corrupt intent to obtain a benefit for himself . . . or another, to-wit: for the benefit of JACINDA LYNN FANNIN, contrary to F.S. 839.25(1)(b). Counts III and IV of the information charged Lacey with official misconduct and grand theft, respectively; however, that portion of the information which would have set forth the factual basis for Counts III and IV is not of record, and no conclusion can be drawn as to whether or not the basis for those charges related to Lacey's employment with BCC. In response to the information in Case No. 87-6744 CFA, and following the resolution of Case No. 87-2056CFA, Lacey entered a plea of nolo contendere to all counts. The Court, by order of November 28, 1988, withheld adjudication of guilt, and placed Lacey on probation for three years with regard to Counts I, III and IV and six months as to Court II. All probationary terms were to run concurrent and coterminous with those imposed in Case No.87-2056CFA. 2/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered forfeituring the rights and benefits of petitioner, Robert T. Lacey, under the Florida Retirement System, except for the return of his accumulated contributions. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 25th day of March 1994. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March 1994.
Findings Of Fact The Petitioner, C. DEAN LEWIS, was first employed on March 4, 1966 by the Lafayette County School Board and remained employed by that agency until September 1, 1975. From the time of his employment with that agency, Mr. Lewis was enrolled in the agency retirement system. On September 1, 1975, Petitioner was employed as County Attorney by Suwannee County, Florida. From the time of enrollment in 1966 until such time as the retirement system became non- contributory, sums were withheld from his salary for payment into the retirement fund. When Petitioner became County Attorney for Suwannee County in September 1975, he continued his enrollment in the Florida Retirement System. The evidence presented in the form of enrollment cards fails to show the exact date of enrollment or for what position of employment he was enrolled. However, it is quite clear that Petitioner was enrolled in the Florida Retirement System or its predecessor system continuously since the inception of his employment by a governmental agency. On July 1, 1979, the Division of Retirement issued new rules regarding membership in the Florida Retirement System contained in Section 22B-1.04(5)(6), Florida Administrative Code. On September 15, 1979, the Division of Retirement promulgated its Memorandum No. 79-20, to all Florida Retirement System reporting agencies outlining the new guidelines for enrollment. This memorandum specifically referred to attorneys and encouraged the agency to examine the employment status of attorneys to determine whether that individual was an employee of the agency or merely a contractor. Thereafter on February 26, 1981, the Division of Retirement sent out another memorandum, Number 81-38, again to all retirement system reporting units, which placed specific emphasis on those situations involving employees versus consultants/contractors. This situation clearly pertains to the situation of the Petitioner here. When these memoranda were received by Suwannee County, at least one was inserted in Petitioner's personnel file. At no time, however, was any consideration given to the Petitioner's situation nor was any mention made by the County to the Petitioner regarding these memoranda. In addition, at no time did any representative of the Florida Retirement System or the Division of Retirement have any contact with Petitioner either in person or through correspondence to advise him that his status was under reconsideration and that he had an obligation to clarify his standing to the satisfaction of the Division. In early 1984 the Division of Retirement forwarded an employment relationship questionnaire to the Suwannee County Board of County Commissioners requesting that it complete the questionnaire as it pertained to Petitioner, the County Attorney. This questionnaire was completed by Jerry A. Scarborough, Clerk of the Circuit Court, who was responsible for maintaining the personnel records of Petitioner and most other county employees. On the basis of Mr. Scarborough's answers to various questions, the Division of Retirement on May 14, 1984, advised Petitioner of its intention to disenroll him from the Florida Retirement System. The Division listed some seven areas wherein Mr. Scarborough's answers indicated that Petitioner was a "consultant or other professional person" as defined in Rule 22B-6.01(12), rather than a true employee of the county. As such, Mr. Tom F. Wooten, Chief, Bureau of Enrollment and Contributions, Division of Retirement, concluded that Petitioner was, therefore, not eligible to participate as a member of the Florida Retirement System. Mr. Wooten further indicated the Division's intent to remove him from membership as of July 1, 1979. Thereafter, as was stated previously, on July 6, 1984, Mr. A. J. McMullian, III, State Retirement Director, by letter, advised Petitioner that he had considered his response to the original letter of intent but nonetheless, continued to conclude that he was not eligible to participate as a member of the Florida Retirement System. The July 6, 1984 letter by Mr. McMullian indicated the finality of the Division's decision. It is not now the Division's intention to disenroll Petitioner from the Florida Retirement System effective in 1979. Based on a recent decision of the Florida District Court of Appeals, the Division recognizes that it can reasonably disenroll him no earlier than the date he was first advised of the Division's concern regarding his status. That date is May 14, 1984, the date of the Division's initial letter of intent. The decision by the Division of Retirement to remove Petitioner and other professional contractors from the retirement system is based on its contention that the Petitioner and these other individuals are not bona fide employees of the agency under whose auspices they are enrolled in the system. It is not the position of the Division that only full-time employees can be enrolled. To the contrary, the agency is quite willing to accept that part-time employees are eligible for enrollment providing they meet the other criteria. With regard to the Petitioner and other professionals, primarily attorneys and physicians, it is the Division's contention that they are not true employees of the county but are independent-contractors or consultants who are not eligible for membership in the system. The factors leading to the conclusion drawn by the Division include such things as: Petitioner was not trained or schooled by the county in the professional work he performs; That he is not given instructions as to how the work is to be done; That he is not required to maintain regular office hours established by the county; That the county does not provide him with materials, tools, or equipment to perform his duties; That he is available to provide identical professional services to others in the county and in furtherance of that pursuit, maintains a business listing in the telephone book, and a trade journal to that effect as well as maintaining a private office for the practice of his profession; That he hires, pays, and supervises assistants who assist him in the performance of his law firm duties as well as those duties performed for the county; and That he is not eligible for annual or sick leave from the county. The Petitioner is hired by the county to advise the Board of County Commissioners, constitutional officers, and citizens of the county having business with the county referred to him by the Board. His private law firm also does additional work for the county in other areas for which it is compensated independently. Petitioner's yearly salary, which was recently increased from $6,000.00 to $8,000.00 per year is related solely to his performance of duties as county attorney. In that capacity he does not get involved in the county's litigation. His firm, as well as other firms in the area, is hired by the county separately for that function. Petitioner vehemently denies that any partner of his or any employee substituted or acted for him at meetings of the Board of County Commissioners in his capacity as county attorney. Whenever such partners or employees addressed the Board, they did so on work they were doing for the firm separately from that related to his position as county attorney. Petitioner contends that he spends an average of 10 hours per month on county business of which 80 percent is accomplished at the county courthouse. In addition to these 10 hours per month, citizens of the county, the press, and county officials contact him at home and at other places at all hours of the day and night regarding county business. He is not furnished an office in the county courthouse or any other county building. Though he contended that his seat in the county commission room is his office and the place where he accomplished most of his county related work, and though this contention was supported by the Clerk of Court, Mr. Scarborough, it is clear that in reality, Petitioner does not have an office furnished him by the county, and such work as he accomplished on the county's behalf is done primarily in the office of the official requesting it. It is also most likely that substantial correspondence and other clerical work is accomplished for the county by the petitioner in his private office and is accomplished by his own law firm employees. The county supplies him with some books and manuals including copies of various ordinances, codes, and attorney general opinions. The outside work which he does for the county, including, for example, such things as plat examinations, is billed to the county at a rate of $75.00 per hour. The amount he receives, however, never exceeds the amount received by the county for this service. In 1975, prior to his becoming county attorney, he discussed the potential for assuming this position with his predecessor and law partner, Mr. Airth. One of the major factors convincing him to accept the position of county attorney was the prospective retirement benefits he could expect after fulfilling a number of years in this job. Petitioner was hired by the County Commission on an oral contract basis and has never had a written contract with the county. At the first commissioner's meeting of each year, the Board considers Petitioner's continued relationship with the county and confirms it. It could, at any time, decline to extend the relationship, though it has not yet done so. This arrangement differs from that of a normal consultant in that the relationship with a relationship is terminated automatically when the specific job for which the individual is hired has been completed. Petitioner's relationship has been continuous since 1975 and at the present time there appears to be no indication that it will be terminated in the foreseeable future. His compensation is reported to the Internal Revenue Service on a form W-2. That which was submitted for the year 1983 reflects that social security taxes were withheld but no federal income tax. Petitioner explains this on the basis that he claims four dependents and that, therefore, no tax should have been withheld. This explanation is questionable at best. Petitioner takes exception to several of the answers by Mr. Scarborough on the questionnaire submitted to the Division of Retirement. For example, at question 4b, Petitioner contends that he does in fact attend regularly scheduled meetings of the Board of County Commissioners and other agencies and is, therefore, required to follow daily routines. He contends that he is given the specific work which has to be done and the time in which it is to be accomplished and is, therefore, instructed as to how the work is `to be done by his employer. He contends that this same relationship makes him no different than any other county agency or section director who have authority to accomplish their work with some latitude and discretion. Petitioner also contends that he was hired for one year, not an indefinite period, though he has continued to work since 1975 and anticipates no change in his relationship in the future. He contends that the requirement to attend meetings on definite dates at certain times, which takes up to 60 to 80 percent of his time on the job, constitutes the fixed hours and certain times mentioned in the questionnaire. Further, he indicates that with regard to the determination of the hours when the work should be performed, this decision is made not by the employee as indicated on the questionnaire, but by his employer, the county. Petitioner also contends that such help as he utilizes in performing county business is received from public employees, not from his own law firm employees, and that most of his work is done in the courthouse. While Petitioner does not earn annual leave, sick pay, bonuses, or other benefits, he has been enrolled in the retirement system, was eligible to purchase county insurance, and was carried as any other employee on the county's workers' compensation policy. He is authorized to miss one commission meeting per year for vacation and others during the year as excused for illness. Taken in its totality, it becomes obvious that Petitioner's relationship with Suwannee County, Florida is little different from that of any other attorney-client relationship of long standing. It is clear that Petitioner's relationship with the county, though it may have been intended since May, 1984 to fall within the guidelines set forth by Use Division of Retirement, did not do so from 1975 to the latter date. It is clear that the Petitioner's primary employment was that of a private practitioner. One of his clients, and perhaps his largest client in terms of population, is Suwannee County, but the relationship is that of attorney-client, not that of employer- employee. While Petitioner no doubt is the Suwannee County Attorney, he performs that function as a private practitioner and not as a member of the county work force even though his salary is paid from the general salary and wages account.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is, therefore: RECOMMENDED that Petitioner, C. DEAN LEWIS, be disenrolled from the Florida Retirement System effective May 14, 1984. RECOMMENDED this 1st day of February, 1985 in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1985. COPIES FURNISHED: William A. Frieder, Esquire Division of Retirement 2639 North Monroe Street Suite 207 - Building C Tallahassee, Florida 32303 C. Dean Lewis, Esquire c/o Airth, Sellers, Lewis & Decker Post Office Drawer 8 Live Oak, Florida 32060 Gilda Lambert, Secretary Department of Administration Carlton Building Tallahassee, Florida 32301
The Issue The issue is whether the Department of Management Services, Division of Retirement, correctly excluded Petitioner from participation in the Florida Retirement System from August 18, 1995, through November 17, 1996.
Findings Of Fact Petitioner was hired by Dixie County on August 18, 1995, to work the roll-off site in Jena, Dixie County, Florida. At the time of his hiring, Petitioner's position was described as "Temporary Roll-Off Site Fill In." A roll-off site is where people take their garbage which is then transferred to the main facility for disposal. A "Temporary Roll-Off Site Fill In" is defined as someone who is called to work as needed. According to the Dixie County Payroll Records, Petitioner was employed as a "Temporary Roll-Off Site Fill In" from August 19, 1995, until November 18, 1996, when he became a "Part-Time Fill In Roll-Off" with an 80-hour biweekly schedule, until a permanent position could be filled. In July 1998, Petitioner's position became classified as permanent and his position description was changed to "Full Time Roll-Off Site." Testimony from Howard Reid, the road superintendent who was Petitioner's supervisor at the Jena roll-off site during the time period of August 18, 1995, to November 17, 1996, was that Petitioner was employed to fill the full-time position of Houston O. ("Hugh") Markham who had been fired from his employment with Dixie County in August 1995. Mr. Reid testified that Petitioner was employed in a regularly established position during this time period. No documentation was produced to substantiate the claim that Petitioner worked in a regularly established position from August 18, 1995, to November 17, 1996. Respondent's records show that Houston O. Markham was employed by Dixie County during the period of August 18, 1995, to November 17, 1996. Houston Markham was paid by Dixie County until December 1, 1996. December 1, 1996 is the pay date for the period beginning November 18, 1996. Based upon the payroll records, Petitioner began working 80 hours, biweekly, on November 18, 1996. This date coincides with Respondent's records for the last pay date of Houston Markham. The only time records in evidence for Petitioner are for the time period of November 3, 1996, to July 26, 1998. For the pay date of November 3, 1996, Petitioner was paid for 42 hours of work. For the pay date of November 17, 1996, Petitioner was paid for 53 hours of work. Thereafter, for the next 43 pay periods, Petitioner was paid for 80 hours of work biweekly (with one exception, the pay date of July 13, 1997, for which he was paid 76 hours). Petitioner's other witnesses, Joseph Ruth and Arthur Bellot, were not in a supervisory position over Petitioner from August 18, 1995, to November 17, 1996, and could not attest to Petitioner's employment during that time. Membership in the Florida Retirement System is compulsory for any person who fills a regularly established position, as defined by statute. A person filling a temporary position, as defined by statute, is not eligible to participate in the FRS. The agency would not report the temporary employee's work to Respondent. The first time Dixie County ever reported Petitioner for retirement purposes was in January 1998. After review, Respondent found that Petitioner was eligible to participate in the FRS effective November 18, 1996, based upon a Payroll Change Notice from Dixie County. The number of hours a state employee works is not dispositive of the issue of whether he or she is an employee in a regularly established position. An employee who works only two days a week, for example, would be a participant in the FRS if employed in a regularly established position. Based upon the documentation in its possession, Respondent enrolled Petitioner in the FRS effective November 18, 1996. Respondent requested that Petitioner submit tax documentation to demonstrate that he had worked full-time for Dixie County during the August 18, 1995, to November 17, 1996, period, as he claimed. Respondent submitted no documentation to support his claim to have been either a full-time employee or an employee in a regularly established position.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Division of Retirement enter a Final Order denying Petitioner's request for participation in the Florida Retirement System for the period of August 18, 1995, through November 17, 1996. DONE AND ENTERED this 30th day of November, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 30th day of November, 2004. COPIES FURNISHED: Spencer Kraemer, Assistant General Counsel Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Joseph Lander, Esquire Lander & Lander, Attorneys at Law Post Office Box 2007 Cross City, Florida 32628 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-0950 Alberto Dominguez, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
Findings Of Fact Upon consideration of the joint stipulation of facts submitted by the parties, the following relevant facts are found: The petitioner was elected to the office of tax assessor, Bay County, for successive regular terms in 1952, 1956, 1960, 1964, 1968, and 1972. He was commissioned for that office on January 6, 1953, January 8, 1957, January 3, 1961, January 5, 1965, January 7, 1969, and January 2, 1973. As tax assessor, petitioner was a member of the retirement system now known as the State and County Officers and Employees Retirement System, Chapter 122, Florida Statutes. By two written ballots, petitioner rejected membership in the Florida Retirement System, Chapter 121, Florida Statutes, to be effective December 1, 1970, and January 1, 1975. The constitutional office of tax assessor was abolished and the constitutional office of property appraiser was created in its stead by amendment to Article 8, Section (1)(d) in 1974. The petitioner was elected to the office of property appraiser in 1976, and commissioned on January 4, 1977. The petitioner's duties as property appraiser were and are the same as they were when he was the tax assessor. Petitioner has been in office continually since January 6, 1953, either as tax assessor or property appraiser. He has not terminated his employment and received a refund of contributions; has not had a non-creditable leave of absence; nor was he off the payroll for at least one calendar month.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's demand for admittance into the Florida Retirement System as of January 4, 1977, be denied. DONE and ENTERED this 20th of December, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William A. Cooper, Jr., Esquire Davenport, Johnston, Harris, Gerde and Harrison 406 Magnolia Avenue Robert L. Kennedy, Jr. Panama City, Florida 32401 State Retirement Director Division of Retirement Cedars Executive Center 2639 North Monroe Street Tallahassee, Florida 32303 Stephen S. Mathues, Esquire Assistant Division Attorney Cedars Executive Center 2639 North Monroe Street Suite 207-C, Box 81 Tallahassee, Florida 32303
Findings Of Fact The hearing officer's findings of fact are hereby approved and adopted. There is competent, substantial evidence to support the the hearing officer's findings of fact. Petitioner takes his vacation between school board meetings or by asking the school board to be excused from attending said meetings. No leave time is actually used for such absences. (Petitioner's Exhibit O) Prior to 1979 the Division had not determined Cooney was an employee being paid from a regular salaries account who was eligible for FRS membership. His actual position and employment status was not questioned until 1980. Following an extensive review of Cooney's position, which had not changed since 1965, the Division determined Cooney was not eligible for FRS membership because he was not filling a regularly, established position. The 1979 rule changes defined "regularly established position", but did not redefine employee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division enter a final order declaring Richard W. Cooney eligible for membership in the Florida Retirement System both before and after July 1, 1979. RECOMMENDED this 6th day of September, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 1984.
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
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.
Findings Of Fact 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. 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. 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. 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. 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 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. 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.
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
The Issue Whether Petitioner forfeits his rights to benefits under the Florida Retirement System.
Findings Of Fact On May 5, 2011, Petitioner was mayor of North Miami Beach, Florida. During Petitioner’s employment as mayor with North Miami Beach, he was a member of the Florida Retirement System. On or about October 17, 2012, Petitioner was charged by Information with nine criminal counts in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. On February 24, 2016, pursuant to a written Plea Agreement, Rosner entered a plea of guilty to Count 11/ Unlawful Compensation [or] Reward for Official Behavior, in violation of section 838.016(2), in Eleventh Circuit case F12023663. That same day in the Eleventh Circuit case F12023663, Judge Martin Bidwill issued the following orders: an Order Ratifying Terms of Plea Agreement; a Disposition Order specifying Rosner’s plea to Count 1 Unlawful Compensation [or] Reward for Official Behavior; and a Finding of Guilt Order to Count 1 Compensation [or] Reward for Official Behav[ior]/Influence. The October 17, 2012, Information detailed the factual basis of Rosner’s plea and conviction in Count 1.2/ Petitioner illegally received unpaid campaign advertising from Martin Outdoor Media, which had a continuing contract with the City of North Miami Beach while Petitioner served as mayor. Count 1 provides in relevant part, the following: COUNT 1 MYRON JOEL ROSNER, on or about May 5, 2011, in the County and State aforesaid, being a public servant to wit: MAYOR OF NORTH MIAMI BEACH did unlawfully, feloniously, and corruptly request, solicit, accept, or agree to accept any pecuniary or other benefit not authorized by law, to wit; UNPAID CAMPAIGN ADS, for the past, future, or future exertion of any influence upon or with any other public servant regarding any act or omission which said public servant represented as being within the official discretion of a public servant, to wit: CONTINUE ALL MARTIN OUTDOOR MEDIA CONTRACTS WITH THE CITY OF NORTH MIAMI BEACH, in violation of s. 838.016(2), Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.3/ Rosner was notified by certified letter dated April 20, 2016, of the Division's proposed action to forfeit his Florida Retirement System rights and benefits pursuant to sections 112.3173 and 121.091(5)(f). The notice provided the following basis for the proposed action: . . . . as a result of your guilty plea in the Circuit Court of the Eleventh Judicial Circuit, in and for Miami-Dade County, Florida, for acts committed in connection with your employment with the City of North Miami Beach. Specifically, on or about October 18, 2012, in Case Number F12-023663 (2012-CF_023663), you were charged by information, in relevant part, with unlawful compensation or award for official behavior, a second degree felony in violation of section 838.016(2), Florida Statutes, based on conduct which occurred on or about May 5, 2011. On or about February 24, 2016, you entered a guilty plea for one count of unlawful compensation or award for official behavior, a second degree felony in violation of section 838.016(2), Florida Statutes, and adjudication of guilt was withheld. By Petition dated May 9, 2016, Rosner contested the Notice and challenged the forfeiture.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order finding that Petitioner was a public employee convicted of a specified offense committed prior to retirement pursuant to section 112.3173, Florida Statutes, and directing the forfeiture of his Florida Retirement System rights and benefits. DONE AND ENTERED this 15th day of June, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 15th day of June, 2017.
