90-002424 Albert A. Moss vs. Division Of Retirement
 Status: Closed
Recommended Order on Friday, September 28, 1990.

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Summary: Retiree was rehired to perform school bus driver evaluations and Division of Retirement stopped retirement benefits-Recommended Order for teacher-Final Order reverse





13Petitioner, )


16vs. ) CASE NO. 90-2424





34Respondent. )



39The final hearing in the above-styled matter was heard

48pursuant to notice by Stephen F. Dean, assigned Hearing Officer

58of the Division of Administrative Hearings, on August 22, 1990,

68in Jacksonville, Florida.


72For Petitioner: Albert A. Moss, Pro Se

79111 Inwood Terrace

82Jacksonville, Florida 32207

85For Respondent: Stanley M. Danek, Esquire

91Department of Administration

94Division of Retirement

97Cedars Executive Center

100Building C

1022639 N. Monroe Street

106Tallahassee, FL 32399-1560


113The issue is whether Petitioner was reemployed as a

122substitute or hourly teacher on a noncontractual basis after he

132was retired for one month.


139Petitioner is a retired member of the Florida

147Retirement System ("FRS"), Chapter 121, Florida Statutes, who was

158reemployed one month after his retirement by the Duval County

168School Board ("Board") as an hourly non-contract teacher. The

179Division of Retirement contends that the duties performed by the

189retiree were not those of an hourly non-contract teacher.

198The petitioner did not file proposed findings. The

206Respondent filed proposed findings which were read and

214considered. The Appendix, attached hereto and incorporated by

222reference herein, states in detail which proposed findings were

231adopted and which were rejected and why.


2411. Petitioner was employed by the Board for several

250years as a driver's education teacher prior to his retirement.

260This position is a certificated teaching position under the rules

270of the State Department of Education.

2762. The operation of school buses in Duval County was

286and is done primarily by private companies, who are independent

296contractors and who, in turn, hire the bus drivers. Several

306years ago, the State of Florida required by law that all school

318bus drivers be certified as school bus drivers at the time of

330their initial employment. The Superintendent of Schools of Duval

339County instituted a program to certify its school bus drivers

349using Board personnel.

3523. Certificated driver's education teachers were

358asked to become qualified with the State to evaluate and test

369school bus drivers to insure that the drivers were in compliance

380with State law. Rule 6A-3.0141, et seq., Florida Administrative


3904. All of the bus driver evaluators were driver's

399education instructors. Petitioner was one of the driver's

407education teachers who qualified and was employed to evaluate and

417test school bus drivers. The job of the Petitioner and other

428evaluators was to educate and test the drivers about the bus

439safety rules, to include "check" rides with drivers before

448certifying them. The school bus driver certification program is

457operated by the Board on a full-time basis, 5 days a week, 8

470hours a day.

4735. There is a written job description for the

482position of driver's education teacher which was not changed or

492amended to reflect the additional duties of bus driver


5026. Prior to retiring, Petitioner worked as a driver's

511education teacher on a full-time basis (7 hours, 20 minutes per

522day) and performed the duties as evaluator and tester of the

533drivers after school and on Saturdays. He was paid a salary for

545his teaching duties and an additional amount for his services as

556bus driver evaluator. Although Petitioner received one

563compensation check, the payroll stub indicated regular and

571overtime pay. His additional compensation was calculated on the

580basis of hours actually worked and from the salary schedule for

591part-time teachers. Funding for regular work and overtime was

600charged to the same cost account, "1850", and all his pay was

612based upon his duties as a certified teacher in pay

622classification "0610."

6247. The payroll code for a driver's education teacher

633is "0610". The Board did not have a pay code for a bus driver

648evaluator. Evaluating bus drivers is an additional duty

656performed by driver's education teachers. Pay classification

663code "0610" is applicable to all driver's education teachers; and

673the Petitioner, as well as all of the driver's education

683teachers, was compensated from the instructional salary account

691of the Board.

6948. Although all bus driver evaluators were driver's

702education teachers, not all driver's education teachers were bus

711driver evaluators. Additional duty as a bus driver evaluator was

721voluntary, and driver's education teachers were paid additional

729compensation for performing these duties.

7349. Their entire pay, including the additional

741compensation, was charged to Responsibility Center No. 1850 -

750Driver's Education. Cost center code "1850" is a cost code

760associated with academic programs.

76410. Petitioner was rehired as a teacher after

772retirement and placed in pay category "0610". This was done

783because the only persons performing bus driver evaluations in

792Duval County are driver's education teachers, and no other

801classification or pay code is applicable. Petitioner was placed

810in salary code "0610", driver's education teacher.

81711. Messrs. Richard and Boney were Petitioner's

824supervisors and they did the administrative portion of certifying

833the drivers. Richard and Boney are "administrators" with the

842Board and not certificated or instructional personnel.

84912. A person is classified as a teacher on the basis

860of (a) the union collective bargaining agreement and (b) the

870rules of the Public Employees' Relation Commission. It is up to

881the supervisor to assign the person's duties. Those duties would

891determine the salary code from which the person would be paid.

90213. Petitioner retired under the FRS, effective July

9101, 1989, and was placed on the FRS payroll on that date. In July

924of 1989, he completed a Board form by which he made himself

936available for reemployment. Petitioner was rehired in August as

945a driver's education teacher, pay classification "0610", cost

953center "1850". His supervisor assigned him duties as a bus

964driver evaluator and tester beginning on August 21, 1990.

97314. Petitioner worked part of the months of August,

982September and October of 1989 and was paid at the rate of $15.85

995per hour, the same rate and from the same account as other hourly

1008teachers, "1850". (Exhibit No. 6). While so employed, he could

1019have taught the classroom phase of the evaluation program or

1029could have been assigned to teach driver's education; however,

1038Petitioner only did the road test and evaluation of bus drivers.

104915. Petitioner had the same duties relative to the

1058bus drivers' evaluations and testing both before and after

1067retirement. After retirement, the Petitioner had the same pay

1076code and cost center he had had before his retirement. Although

1087his assigned duties after retirement did not include driver's

1096education, Petitioner did some of the same work that he had done

1108before his retirement and was subject to being assigned student

1118teaching duties.

112016. Inadvertently, the Board deducted retirement

1126contributions from Petitioner's pay and reported the

1133contributions to the Division of Retirement. (Exhibit No. 5).

1142This precipitated an audit of the account; and the Division of

1153Retirement concluded, based upon the data, that Petitioner was

1162not employed as a teacher by the local school district.


1175Section 121.091(9)(b)1., Florida Statutes (1988),

1180provides that a person retired under FRS may not receive both a

1192retirement benefit and salary for a 12-month period after

1201retirement. Specifically, this section states as follows:

1208Any person who is retired under this

1215chapter, ... may not receive both a salary from

1224reemployment with any agency participating in

1230the Florida Retirement System and retirement

1236benefits under this chapter for a period of

124412 months immediately subsequent to the date

1251of retirement. However, a district school

1257board may reemploy a retired member as a

1265substitute or hourly teacher on a

1271noncontractual basis after he has been

1277retired for 1 calendar month.

1282As the Division of Retirement states in its proposed

1291order, Chapter 121, Florida Statutes, does not define "teacher."

1300The Division seeks to define teaching duties using the

1309definitions of "school" and "teacher" from Chapter 228, Florida

1318Statutes. The definitions of "teacher" for other statutory

1326purposes is immaterial. In this case, the issue is not whether

1337Petitioner was employed as an hourly teacher. Clearly, he was.

1347The issue raised by the Division of Retirement is whether the

1358duties he was assigned were appropriate for an hourly teacher.

1368The Division argues that Petitioner was not a teacher

1377because he did not instruct students and that instructing

1386students is paramount in determining whether the Petitioner is

1395actually an hourly teacher. Although the Division of Retirement

1404has a legitimate concern that district school boards might avoid

1414the restriction on FRS reemployment by reemploying a person as a

1425teacher and assigning them other duties, in this case, the record

1436reveals no change in procedure between what the Board did or the

1448employee did before or after retirement.

1454Over one month after his retirement, Petitioner was

1462reemployed without a contract by the Board. He was placed on the payroll as an

1477hourly teacher, classified as a driver's education instructor, paid from the

1488hourly teacher payroll account, and assigned duties as a school bus driver

1500evaluator. In Duval County, all of the school bus driver evaluators are

1512driver's education teachers. There is not a category of "school bus driver

1524evaluators" within the system. The Petitioner was performing part of the same

1536duties he performed before he retired, he was paid from the same account, and

1550had the same pay classification as he had had before he retired. There is no

1565evidence that Petitioner was fraudulently classified as a teacher and assigned

1576to other duties. His duties were similar to those he had performed before

1589retirement and to other driver's education teachers similarly situated.

1598Although the Division argues that he did not teach students, he was fully

1611qualified to perform those duties and could have performed them if they had been

1625assigned to him.

1628The Division may not concur with the Board's choices,

1637but the Board has done nothing to bend the rules to accommodate

1649Petitioner. Clearly, he was classified as an hourly teacher,

1658paid as an hourly teacher, and performed duties he regularly

1668performed as a teacher before he retired. In summary, it is

1679appropriate for the Division to look at funding sources, pay

1689categories, etc. to determine if the retiree is being properly "classified" as

1701a teacher and is being paid from academic funding

1710sources. However, the Division is not well equipped to second-

1720guess a school board about the duties which it assigns to its

1732teachers. Unless a board's action appears to fraudulently avoid

1741the provisions to Chapter 121, Florida Statutes, the Division

1750should avoid looking behind the pay classification and accounting

1759codes. In this case, there is clearly no attempt to fraudulently

1770avoid the retirement law.


1775Having considered the foregoing Findings of Fact,

1782Conclusions of Law, the evidence of record, the candor and

1792demeanor of the witnesses, and the pleadings and arguments of the

1803parties, it is therefore,

1807RECOMMENDED that Division of Retirement take no action

1815to collect the benefits paid to the retiree during the period of

1827his reemployment by the Duval County School Board between August,

1837September, and October 1989.

1841DONE AND ENTERED this __28__ day of September, 1990, in

1851Tallahassee, Leon County, Florida.



1859Hearing Officer

1861Division of Administrative Hearings

1865The DeSoto Building

18681230 Apalachee Parkway

1871Tallahassee, FL 32399-1550

1874(904) 488-9675

1876Filed with the Clerk of the

1882Division of Administrative Hearings

1886this __28__ day of September, 1990.


1896IN CASE NO. 90-2424

1900The Petitioner did not submit proposed findings of


1909Respondent's Proposed Findings of Fact

19141-8. Adopted.

19169. First portion adopted; last two sentences rejected

1924as irrelevant.

192610. Adopted.

192811. First portion adopted; last sentence rejected as


193712. Adopted.

193913. Adopted, except first sentence, which was rejected

1947as irrelevant.

194914. Rejected as irrelevant.

195315. Adopted, except last two sentences, which were

1961rejected as statement of issues.

196616. Adopted.


1970Aletta Shutes, Secretary

1973Department of Administration

1976435 Carlton Building

1979Tallahassee, FL 32399-1550

1982Albert A. Moss, Pro Se

1987111 Inwood Terrace

1990Jacksonville, FL 32207

1993Stanley M. Danek, Esq.

1997Department of Administration

2000Division of Retirement

2003Cedars Executive Center

2006Building C

20082639 N. Monroe Street

2012Tallahassee, FL 32399-1560

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Date: 12/26/1990
Proceedings: Agency Final Order
Date: 12/26/1990
Proceedings: Recommended Order
Date: 09/28/1990
Proceedings: Recommended Order (hearing held , 2013). CASE CLOSED.

Case Information

Date Filed:
Date Assignment:
Last Docket Entry:
Jacksonville, Florida

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