14-002554 Harry Marcus vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Thursday, August 28, 2014.

Summary: Petitioner failed to prove by a preponderance of the evidence that he is entitled to creditable service based on his employment with the School Board, because the position he held was that of a part-time, temporary, vocational education instructor.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARRY MARCUS ,

Petitioner ,

vs. Case No. 1 4 - 2554

DEPARTMENT OF MANAGEMENT

SERVICES, DIVISION OF

RETIREMENT ,

Respondent .

/

RECOMMENDED ORD ER

This case came before Administrative Law Judge Darren A.

Schwartz for final hearing by video teleconference on July 31 ,

2014 , with sites at Lauderdale Lakes and Tallahassee , Florida.

APPEARANCES

For Petitioner: Harry Marcus, pro se

8 31 Cumberland Terrace

Davie, Florida 33325 - 1236

For Respondent: Larry D. Scott, Esquire

Department of Management Services

4050 Esplanade Way , Suite 160

Tallahassee, Flor ida 32399

STATEMENT OF THE ISSUE S

W hether Petitioner , Harry Marcus ( Ð Petitioner Ñ ) , 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 .

PRELIMINARY STATEMENT

On February 20, 2014 , Respondent , Department of Management

Services, Division of Retirement (ÐRespondentÑ), issued a final

agency action le tter to Petitioner, informing Petitioner that his

request for creditable service for retirement benefits was

denied , because the position he held for which he seeks

creditable service was a temporary position. Dissatisfied with

RespondentÓs determination, Petitioner timely filed a request for

an administrative hearing.

On April 23, 2014 , Respondent issued a supplemental final

agency action letter to Petitioner, informing Petitioner that

his request for creditable service was denied because his reques t

was untim ely pursuant to section 121.085 . Respondent stated in

its April 23, 2014, letter that it was placing Ðits February 20,

2014 final agency action letter into abatement until the issue

presented in this supplemental final agency action letter is

d etermined.Ñ Dissatisfied with RespondentÓs determination as set

forth in the April 23, 2014, letter , Petitioner timely filed a

second request for an administrative hearing. Furthermore, in

his second request for an administrative hearing, Petitioner

spec ifically requested that Ðthe abatement be lifted and a

hearing date be set.Ñ

On May 30, 2014, Respondent referred this matter to the

Division of Administrative Hearings ( Ð DOAH Ñ ) to assign an

Administrative Law Judge to conduct the final hearing.

On June 5, 2014, the undersigned issued a Notice of Hearing

by Video Teleconference (ÐNoticeÑ), setting this matter for final

hearing on July 31, 2014. The N otice states the issue as

follows: ÐWhether Petitioner timely claimed creditable service

pursuant t o section 121.085, Florida Statutes.Ñ

On July 29, 2014, a telephonic pre - hearing conference was

held with the parties. During the conference, the parties agreed

to go forward with the hearing on July 31, 2014, and that the

hearing would involve both issu es of whether Petitioner timely

claimed creditable service pursuant to section 121.085, and

whether the adult education teacher position Petitioner held , for

which he seeks creditable service for retirement benefits , was a

temporary position. 1/

At the fin al hearing, Petitioner testified on his own

behalf, and PetitionerÓs Exhibits 1, 3, 4, 6, 7, 12, and 14

through 16 were received into evidence. Respondent presented the

testimony of Petitioner, Ronley Alexander, Stephen Bardin, and

Joyce Morgan , 2 / and Res pondentÓs Composite Exhibits 1 through 8

were received in to evidence. At the hearing, the undersigned

granted RespondentÓs request for official recogn ition of the

following Florida S tatutes and rules of the Florida

Administrative Code: s ections 121.021(1 1), 121.021(52)(b),

121.0 21(53)(b), 121.193, and 121.085 ; and Florida Administrative

Code Rules 60S - 1.002 and 1.004 .

The final hearing was recorded , but no transcript was filed.

At the conclusion of the final hearing, the parties agreed that

their pro posed recommended orders would be filed by August 20,

2014. Respondent timely filed a P roposed R ecommended O rder,

which was given consideration in the preparation of this

Recommended Order. Petitioner filed a P roposed Recommended O rder

on August 21, 2014 , one day late . Nevertheless, PetitionerÓs

Proposed Recommended Order was given consideration in the

preparation of this Recommended Order.

FINDING S OF FAC T

1. The Florida Retirement System (ÐFRSÑ) is a public

retirement system as defined by Flori da law. Respondent is

charged with managing, governing, and administering the FRS .

2. On February 12, 1979, Petitioner began employment with

the Florida Department of Labor & Employment Security (ÐFDLESÑ),

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 .

3. On January 4, 1991, Petitioner voluntarily resigned his

employment with FDLES. At that time, Petitioner had 11 years and

11 months c reditable service with FRS based on his employment

with FDLES.

4. On January 23, 1991, Petitioner submitted a Florida

Retirement System Application f or Service Retirement to the State

of Florida, Department of Administration, Division of Retireme nt

(ÐDOA Division of RetirementÑ) . 3/

5. 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 Pe titionerÓs 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

with in 30 days after your termination date.

If the application is received after the 30

days, your retirement date will be the first

o f the month following the month we receive

it.

6. On September 27, 1993, Petitioner began employment with

the Browar d County, Florida , School Board (ÐSchool BoardÑ) as a

part - time, temporary, adult vocational education instructor at

Ð Whispering Pines . Ñ Whispering Pines is an Ðoff - campusÑ adult

education program. The School Board is an FRS - participating

employer.

7. Petitioner was employed by the School Board f rom

September 27, 19 93 , until April 2009 , when he voluntarily

resigned his employment with the School Board .

8. T hroughout PetitionerÓs entire employment with the

School Board , he was compensated o n an hourly basi s and held the

same position , that of a part - time, temporary, adult vocational

education instructor .

9. Each school year throughout his employment with the

School Board, Petitioner signed an Agreement f or Part - Time

Instructio n in Vocational, Adult a nd 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 t he agreements for part - time

instruction that Petitioner sign ed, 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.

Th e instructorÓs 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

1 . 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 genera l

education, C ommunity Instructional Services,

and education for personal improvement.

2 . Part - time, temporary teachers shall have

no guarantee or expectation of continued

employment and may be terminated upon written

notice by the location administrator.

3 . A part - time, temporary employee must meet

the same employment criteria as full - t ime

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

person nel to positions covered by this policy

pending action by the School Board at its

next regular or special Board meeting.

4 . The principal (or administrative

designee) shall recommend for employment only

persons who have completed all requirements

for th e recommended position. Instructors

appointed to teach courses requiring

certification who are approved on an Ðapplied

forÑ status must file a valid Florida

TeacherÓs Certificate not later than ninety

(90) days from the date of employment.

Failure to pro vide such certificate within

the specified time may result in [ re s cis s ion ]

of the appointment.

5 . Part - time, temporary teachers shall be

paid an hourly salary based upon the Salary

Schedule adopted for part - time temporary

employees.

6 . Part - time teac hing experience cannot be

used toward experience credit on the full -

time Teacher Salary Schedule.

7 . Part - time, temporary teachers shall not

be eligible for a continuing contract or for

a Professional Service Contract and are not

entitled to fringe bene fits.

1 0 . As a part - time, t emporary employee, Peti tioner did not

hold a regularly - established position with the School Board.

PetitionerÓs employment with the School Board was t erm - to - term ,

and he had no expectation of continued employment . Beca use

Petitioner held a temporary position, he is n ot eligible for

service credit in the FRS based on his employment with the School

Board .

11 . Even though Petitioner is not entitled to eligible

service credit in the FRS based on his employment wit h the School

Board, he is eligible to participate in the FICA Alternative

Plan, which is separate and distinct from the FRS.

1 2 . The FICA Alternative Plan is designed for individuals,

such as Petitione r, 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 contr ibute to the plan, and Petitioner was prohibited from

participating in the FRS.

1 3 . 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 empl oyment 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 provi ded by

Respondent at that time for Petitioner to institute formal

proceedings to challenge the decision.

1 4 . On March 9, 2009, Petitioner submitted a Florida

Retirement S ystem Pension Plan Application f or 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 PetitionerÓs 11.91 years of service with FDLES .

15. Subsequently, Petitioner was added to the retirement

payroll effective April 2009 , and he has received monthly

retirement benefits based on his 11 yea rs and 11 months of

service with FDLES.

1 6 . The evidence adduced at the final hearing established

that Petitioner timely claimed creditable service for retirement

benef its pursuant to section 121.085 . Petitioner first sought

creditable service for reti rement benefits in 2008, based on his

employment with the School Board. However, Petitioner did not

retire from the School Board until 2009.

1 7 . Nevertheless, Petitioner is not eligible for creditable

service for his years of employment with the Schoo l Board because

his employment with t he School Board was in the part - time,

temporary position of an adult vocational education instructor .

C ONCLUSIONS OF LAW

1 8 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to sections 1 20.569 and 120.57(1),

Florida Statutes ( 2014) .

1 9 . Petitioner has the burden of proving by a preponderance

of the evidence that he is e ntitled to creditable service under

the FRS. Wilson v. DepÓt of Admin., Div. of Ret. , 538 So. 2d

139, 141 - 42 (Fla. 4t h DCA 1989).

20 . Respondent admini sters the FRS as authorized in

c hapter 121, Florida Statutes, and the rules promulgated in

Florida Administrative Code Chapter 60S. 4 /

21 . Rule 60S - 1.002(2) , effective September 17, 2003,

provides:

The Division shall deny membership to any

officer or employee who does not meet the

requirements for membership in the Florida

Retirement System as set forth in Chapter

121, F.S., and these rules.

22 . Section 121.021(11), Florida Statutes (20 08 ), defines

ÐemployeeÑ as:

(11) ÐOfficer or employeeÑ means any person

receiving salary payments for work performed

in a regularly established position and, if

employed by a city , a metropolitan planning

organization, or a special district, employed

in a covered group.

2 3 . Section 121.021(52)(b), Florida Statutes (20 08 ),

defines a Ðregularly established positionÑ as follows :

(52) ÐRegularly established positionÑ is

defined as follows :

(b) In a l ocal agency ( district school

board, county agency, community college,

city, metropolitan planning organization, or

special district) , the term means a regularly

e stablished position which will be in

existence for a period beyond 6 consecutive

months, except as provided by rule.

24 . Section 121.021(53)(b), Florida St atutes (20 08 ),

defines a Ðtemporary positionÑ as follows:

(53) ÐTemporary positionÑ is defined as

follows :

(b) In a local agency , the term means an

employment position which will exist for less

than 6 consecutive months, or other position

as determine d by rule of the division,

regardless of whether it will exist for 6

consecutive months or longer.

25 . As authorized by sections 121.021(52)(b) and (53)(b),

the Division has defined Ðtemporary positionÑ in r ule 60S -

1.004(5), effective January 1, 20 06, which provides, in relevant

part:

(5) An employee who is filling a temporary

position shall not be eligible for membership

in the Florida Retirement System. Records

documenting the intended length of a

temporary position and the dates of

employment of an employee in such position

must be maintained by the agency. An

employer employing a person in a temporary

position shall advise the employee at the

time of his employment that he is filling a

temporary position and cannot participate in

the Florida Retirement System or claim this

temporary employment later for retirement

purposes. A position shall not be considered

temporary due to the uncertainty of the

employeeÓs intention to continue employment.

A position meeting the definition below shall

be a temporary position.

* * *

( b) A temporary position in a local agency

is :

1. An employment position which will not

exist beyond 6 consecutive calendar months;

or

2. An employment position which is listed

below in paragraph (d) regardless of whether

it will exist beyond 6 consecutive months.

* * *

(d) The following types of positions in a

local agency are considered temporary

positions for retirement purposes. Documents

to support such temporary positions listed

below must b e maintained in the agencyÓs

records (see subsection 60S - 5.007(2),

F.A.C.) .

* * *

3. Temporary Instructional Positions

(positions which are established with no

expectation of continuation beyond one

semester or one trimester at a time, to teach

i n a community college, public school, or

vocational institution; effective July 1,

1991, such positions may include paper

graders, tutors, notetakers, and lab tutors

at community colleges).

26 . Section 121.085, Florida Statutes (2008), provides , in

pertinent part:

(1) The department shall adopt rules

establishing procedures for the submission of

evidence or information necessary to

establish a memberÓs claim of creditable

service.

(2) No creditable service which remained

unclaimed at retiremen t may be claimed or

purchased after a retirement benefit has been

cashed or deposited.

27 . Turning to the instant case, Petitioner proved by a

preponderance of the evidence that he timely made a claim to

Respondent for creditable service in 200 8, prior to his

retirement. In 2008, Petitioner wrote to Respondent, seeking to

establish that he is entitled to creditable service based on his

employment with the School Board. In response to PetitionerÓs

request, Respondent wrote to Petitioner advisin g him that he is

not entitled to creditable service based on his employment with

the School Board, because he is a temporary, part - time employee .

28 . However, even though Petitioner timely claimed

creditable service, he did not prove, by a preponde rance of the

evidence, that he is entitled to creditable service based on his

employment with the School Board. Throughout the entire course

of PetitionerÓs employment with the School Board, Petitioner held

the same position of a part - time, temporary, voc ational education

instructor. Petitioner had no expectation of continued

employment , and he knew his employment was temporary. At no time

during his employment with the School Board did Petitioner hold a

regularly - established position.

RECOMMENDATI ON

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 e mployment with the School Board .

DONE AND ENTERED this 28 th day of August , 2014 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Build ing

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 .

ENDNOTES

1/ During the conference, t he undersigned inquired whether either

party wished to have the final hearing continued. Both parties

expressed their intent to go forward with the final hearing on

July 31, 2014 , as indicated above .

2/ The testimony of Ms. Morgan was off ered by deposition. The

deposition transcript and accompanying exhibits were received

into evidence at the hearing as RespondentÓs Composite Exhibit 8.

The deposition transcript shows that Ms. Morgan was unavailable

for the hearing .

3 / At that time, the Division of Retirement was a division with

the Florida Department of Administration .

4 / The applicable rules and statutes are those in effect in April

2009 when Petitioner retired his employment with the School

Board. Unless otherwise indicated, al l references to the

statutes and rules are to those in effect in April 2009.

COPIES FURNISHED:

Harry Marcus

831 Cumberland Terrace

Davie, Florida 33325

Larry D. Scott, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahas see, Florida 32399

(eServed)

Bruce Conroy, Interim General Counsel

Office of the General Counsel

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

(eServed)

Dan Drake, Director

Division of Retirement

Depart ment of Management Services

Post Office Box 9000

Tallahassee, Florida 32315 - 9000

(eServed)

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 excepti ons

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.