01-002020 H. Glenn Boggs, Ii vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Friday, September 14, 2001.

Summary: Petitioner is not entitled to earn creditable service for purposes of the Florida Retirement System for the time he was employed by the Florida Bar.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

H. GLENN BOGGS, II , )

)

Petitioner , )

)

vs. ) Case No. 01-2020

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF RETIREMENT , )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

A hearing was held pursuant to notice on July 13, 2001,

by Barbara J. Staros, assigned Administrative Law Judge of the

Division of Administrative Hearings, in Tallahassee, Florida.

APPEARANCES

For Petitioner : Lawrence A. Gonzalez, Esquire

Post Office Box 1876

Tallahassee, Florida 32302-3900

For Respondent : Thomas E. Wright, Esquire

Division of Retirement

Post Office Box 3900

Tallahassee, Florida 32315-3900

STATEMENT OF THE ISSUE

Whether Petitioner is eligible to receive retirement

credit for the period of his employment with the Florida Bar

from July 1, 1977 through June 4, 1981.

PRELIMINARY STATEMENT

In August of 1998, Petitioner requested that the Division

of Retirement (Division) grant him service credit for his

period of employment with the Florida Bar. By letter dated

August 18, 2000, the Division of Retirement notified

Petitioner that his request to receive credit under the

Florida Retirement System for the time he was employed by the

Florida Bar was denied.

Petitioner filed a Petition for Formal Administrative

Hearing. The Petition was forwarded to the Division of

Administrative Hearings on May 23, 2001. A formal hearing was

scheduled for July 13, 2001, in Tallahassee, Florida.

A Joint Pre-Hearing Stipulation was filed. At hearing,

Petitioner presented no witnesses. Petitioner requested

Official recognition of Article 5, Section 15, Florida

Constitution, and the Rules of the Florida Supreme Court.

Respondent presented the testimony of David Ragsdale, who was

tendered as an expert in the Florida State Retirement System.

Respondent's Exhibits 1 through 3, which included the

deposition testimony of George Dillard and Dan Bennett, were

admitted into evidence. Respondent requested official

recognition of Chapter 121, Florida Statutes, and Chapter 60S,

Florida Administrative Code. The parties' requests for

official recognition were granted.

No transcript of the proceedings was filed. The time for

filing post-hearing submissions was set for more than 10 days

after the hearing upon request of the parties. Petitioner and

Respondent timely filed Proposed Recommended Orders which were

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner was employed by the Florida Bar from

July 1, 1977 to June 4, 1981. The record is unclear as to the

nature of his employment at the Florida Bar. He is presently

employed as a professor at Florida State University and has

approximately 24 years' credit in the Florida Retirement

System (FRS).

2. Employees of the Florida Bar are paid as part of an

overall budgetary process generated primarily from members'

dues. Their salaries are not established by or funded by

legislative appropriation.

3. The Florida Bar has its own pension system that is a

defined contribution plan funded entirely by the Florida Bar.

The Bar employees contribute nothing to their pension system.

This system has been in place since approximately 1970.

4. Salaries of state officers and employees are reported

from the State Comptroller to the Division of State

Retirement. No salaries of the Florida Bar were paid or

reported to the Division for the period of time Petitioner was

employed at the Florida Bar.

5. In the 1970's the FRS went from an employee/employer

funded system to a strictly employer funded system which

became known as a non-contributory system.

6. The Florida Bar does not participate as a paying

agency of the FRS and employees of The Florida Bar do not

participate in any state employee benefit system.

7. Beginning in 1955, until the establishment of the

FRS, the Florida Board of Bar Examiners participated in the

former public retirement system. When the FRS was created,

participants, such as the Florida Board of Bar Examiners,

began reporting into the new system and were allowed to

participate in the new system. Mr. Ragsdale, administrator of

the enrollment section of the Division, established that the

employees of the Board of Bar Examiners participated by

contributing into the former retirement system.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

9. The Florida Retirement System is codified in Chapter

121, Florida Statutes. Section 121.051, Florida Statutes

(2001), states in pertinent part:

(1 ) COMPULSORY PARTICIPATION:

(a ) The provisions of this law shall be

compulsory as to all officers and employees

. . . who are employed on or after

December 1, 1970 . . . and each officer or

employee, as a condition of employment,

shall become a member of the system as of

his or her date of employment . . .

( emphasis supplied)

10. Section 121.021, Florida Statutes, (2001), reads in

pertinent part:

(11) 'Officer or employee' means any

person receiving salary payments for work

performed in a regularly established

position and, if employed by a city or

special district, employed in a covered

group.

(12) 'Member' means any officer or

employee who is covered or who becomes

covered under this system in accordance

with this chapter .

* * *

(17) (a) 'Creditable service' of any member

means the sum of his or her past service,

prior service, military service, out-of-

state or non-FRS in-state service, worker's

compensation credit, leave-of-absence

credit and future service allowed within

the provisions of this chapter if all

required contributions have been paid and

all other requirements of this chapter have

been met .

* * *

(52) 'Regularly established position' is

defined as follows:

(a ) In a state agency, the term means a

position which is authorized and

established pursuant to law and is

compensated from a salaries appropriation

pursuant to s. 216.011(1)(dd), or an

established position which is authorized

pursuant to s. 216.262(1)(a) and (b) and is

compensated from a salaries account as

provided by rule. ( emphasis supplied)

11. The reference to Section 216.011(1)(dd), Florida

Statutes, is to "other personal services" (OPS), which is

defined in that paragraph as, "the appropriation category used

to fund the compensation for services rendered by a person who

is not filling an established position." Those employees paid

from OPS appropriations are not eligible for membership in the

state retirement system. Section 216.011(1)(dd )2., Florida

Statutes (2001).

12. "Authorized position" means "a position included in

an approved budget." Section 216.011(1)(b), Florida Statutes

(2001). Those persons filling established positions are paid

from salaries and benefits appropriations and are state

officers or employees who are eligible for membership in a

state retirement system. Section 121 .(1)(dd)1. and 2.,

Florida Statutes.

13. "Appropriation" is defined as, "a legal

authorization to make expenditures for specific purposes

within the amounts authorized in the appropriations act."

Section 216.011(1)(d), Florida Statutes.

14. Rule 60S-6.001(52), Florida Administrative Code,

tracks the statutory language of Section 121.021(52), Florida

Statutes, defining a "regularly established position." 1

15. Reading the above-referenced statutes in para

materia , employees of the Florida Bar are not part of the FRS

in that their positions are not authorized and established by

law and their salaries are not compensated from a salaries

appropriation. No contributions have been made by the Florida

Bar, as an employer, into the FRS. Accordingly, the years

Petitioner worked for the Florida Bar do not constitute

creditable service.

16. Petitioner relies on In re Florida Board of Bar

Examiners , 268 So. 2d 371 (Fla. 1972) in which the Florida

Board of Bar Examiners submitted a question to the Florida

Supreme Court as to whether its employees are state employees

for purposes of the state retirement system and state

insurance. The Florida Supreme Court found that the Florida

Board of Bar Examiners is an agency established by the Court

and, therefore, is a state agency under the judicial branch.

However, an important part of the Court's opinion noted that

employees of the Florida Board of Bar Examiners had been

participating in the state's retirement system since

approximately 1955. The Court noted:

The regular employees of the Florida Board

of Bar Examiners compensated on a fixed

periodic salary basis are eligible for

state retirement and state group insurance

benefits. As a matter of history such

employees have been participating in the

state's retirement system since

approximately 1955 . Even if there was no

statutory basis for their participation,

the State would appear to be collatrally

estopped at this late date to deny these

employees the right to so participate.

( emphasis supplied)

268 So. 2d at 372.

17. Petitioner argues that since the Florida Bar is also

an official arm of the Supreme Court of Florida, that the same

reasoning applied in Florida Board of Bar Examiners, supra ,

should apply to employees of the Bar.

18. Florida Board of Bar Examiners can be distinguished.

The Florida Supreme Court noted that the employees of the

Board of Bar Examiners had been participating in the state

retirement system since 1955. As Mr. Ragsdale of the Division

confirmed, the Board of Bar Examiners have been participating

through contributions to the system. In contrast, the Florida

Bar has not. Clearly, the Florida Supreme Court's reference

to estoppel in its opinion related to the fact that the Board

of Bar Examiners' employees had been participants in the state

retirement system. That rationale simply does not apply to

the employees of the Florida Bar in that they have not been

participating through contributions into the retirement

system.

19. Further, the Court in Florida Board of Bar Examiners

relied on Chapter 122, and particularly Section 122.02(1),

Florida Statutes (1971), in finding that the Board of Bar

Examiners was a state agency for purposes of the retirement

system. 2 Chapter 122, Florida Statutes, was, and is,

entitled, "State and County Officers and Employees Retirement

System."

20. By contrast, Petitioner's rights to retirement

benefits, if at all, are determined in accordance with Chapter

121, Florida Statutes, entitled, "Florida Retirement System,"

which was created by Chapter 70-112, Laws of Florida. Chapter

121, Florida Statutes, covers persons employed as state

officers and employees on or after December 1, 1970. As

Petitioner's employment began after that date, it is

appropriate to examine Petitioner's status under the

definitions in Chapter 121, Florida Statutes, discussed above.

21. Petitioner does not come under the definition of

officer or employee as contemplated by Section 121.051,

Florida Statutes. Accordingly, Petitioner is not entitled to

earn creditable service for purposes of the Florida Retirement

System, for the time he was employed by the Florida Bar.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Department of Management Services, Division of

Retirement, enter a final order denying Petitioner's request

for retirement service credit for the period of his employment

with the Florida Bar.

DONE AND ENTERED this 14th day of September, 2001, in

Tallahassee, Leon County, Florida.

BARBARA J. STAROS

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of September, 2001.

ENDNOTES

1/ Rule 60S-6.001(52), Florida Administrative Code, cites

Section 216.011(1)(x), Florida Statutes, which was renumbered

first to subsection (z), then to subsection (dd), by Chapters

98-73 and 2000-371, respectively.

2/ The Court also referenced Chapter 112, and particularly

Section 112.075(2), Florida Statutes (1972 Supp.). That

statute related to the state officers and employees group

insurance program. Moreover, Section 112.075, Florida

Statutes, was repealed by Chapter 79-190, Laws of Florida.

COPIES FURNISHED:

Lawrence A. Gonzalez, Esquire

Post Office Box 1876

Tallahassee, Florida 32302-3900

Thomas E. Wright, Esquire

Department of Management Services

Division of Retirement

Post Office Box 3900

Tallahassee, Florida 32315-3900

Erin Sjostrom, Director

Division of Retirement

Department of Management Services

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

Emily Moore, Esquire

Division of Retirement

Department of Management Services

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.