93-000404 Lois K. Bauer vs. Division Of Retirement Status: Closed Recommended Order on Monday, July 26, 1993.

Summary: Teacher purportedly terminated was in substance suspended without pay and reinstated; and entitled to purchase a retirement service credit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOIS K. BAUER, )

)

Petitioner, )

)

vs. )

) CASE NO. 93-0404

DEPARTMENT OF MANAGEMENT SERVICES, )

DIVISION OF RETIREMENT, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was conducted in this

proceeding on June 3, 1993, in Orlando, Florida before Daniel Manry, a duly

designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mark S. Levine, Esquire

245 East Virginia Street

Tallahassee, Florida 32301

For Respondent: Larry D. Scott, Esquire

Assistant Division Attorney

Department of Management Services

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Petitioner is

entitled to purchase a retirement service credit for approximately three and a

half years pursuant to Section 121.011(3)(e), Florida Statutes.

PRELIMINARY STATEMENT

Respondent notified Petitioner of its denial of Petitioner's request to

purchase a retirement service credit on January 11, 1993. Respondent filed a

Petition For Formal Administrative Hearing on January 19, 1993.

The matter was referred to the Division of Administrative Hearings on

January 28, 1993, for assignment of a Hearing Officer and assigned to Hearing

Officer Joyous D. Parrish on February 1, 1993. A formal hearing was scheduled

for June 3, 1993, pursuant to the Notice of Hearing issued on March 9, 1993.

The matter was transferred to the undersigned on March 10, 1993.

At the formal hearing, Petitioner submitted eight exhibits for admission in

evidence. Petitioner's Exhibits 1-8 are identified in the transcript of the

formal hearing and were admitted in evidence without objection. Respondent

submitted no exhibits for admission in evidence. Petitioner testified in her

own behalf and submitted the deposition testimony of Mr. Maurice Helms, Chief of

Retirement Calculations, Division of Retirement (Exhibit 4). Respondent

presented the testimony of Mr. Doug Cherry, Retirement Administrator, Division

of Retirement.

A transcript of the formal hearing was filed with the undersigned on June

17, 1993. Respondent and Petitioner timely filed proposed findings of fact and

conclusions of law on June 28 and 30, 1993, respectively. The parties' proposed

findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. As a teacher with the Orange County School Board (the School Board")

since 1967, Petitioner is a member of the Florida Retirement System. Petitioner

was so employed in 1978 and was a member of the Florida Retirement System at

that time.

2. In January, 1978, Petitioner was on approved personal leave for her

wedding. Her husband lived in Arkansas. Petitioner requested and was granted a

leave of absence to join her husband in Arkansas for the balance of the school

year. Petitioner and her husband intended to return to Orlando, Florida before

the beginning of the next school year. Petitioner's husband intended to accept

a position with a veteran's clinic in the Orlando area. Petitioner intended to

resume employment with the School Board.

3. On January 16, 1978, Petitioner properly submitted a written request

for a leave of absence. The leave requested was limited to the remaining term

of the school year which ended in June, 1978. The request asked for a teaching

assignment in the event the request was denied.

4. On February 14, 1993, the School Board granted Petitioner's request for

a leave of absence. The School Board's written authorization was issued on a

standard approval form used by the School Board for such authorizations. The

one page form consisted of standard boiler plate language except for three

blanks in the first paragraph stating the date of approval, the reason for the

leave, and the expiration date for the leave. The boiler plate language in the

standard form included the following statement:

. . . A teacher who desires to return to

employment at the expiration of the leave

period must notify the Superintendent in

writing by March 1 of the school year for

which the leave was granted. . . .

5. Petitioner notified the Superintendent in writing of her desire to

return to employment. Petitioner's written request on January 16, 1978, was

addressed to the School Board. The relationship of the School Board and

Superintendent is that of principal and agent. Petitioner's written request

expressly provided that the leave period was limited to the remainder of the

school year and that Petitioner wanted a teaching assignment if the request for

leave of absence was denied.

6. The requirement for notice prior to March 1, 1978, was based on the

Master Agreement, Article IX, Section L, entered into by the School Board and

the teacher's union. No similar requirement appears in Respondent's rules.

Florida Administrative Code Rule 60S-2.006(1)(a) requires only that:

. . . A leave of absence must be authorized

in writing by a member's employer prior to or

during the leave of absence.

Petitioner's leave of absence was authorized in writing by Petitioner's employer

during her personal leave.

7. Early in February, 1978, Petitioner telephoned Mr. Royce B. Walden,

Associate Superintendent of the School Board, and informed him that she desired

to return to her employment at the beginning of the next school year; in the

Fall of 1978. Mr. Walden did not indicate to Petitioner that she had failed to

provide timely written notice of her intent to return to employment.

8. Later in February, 1978, Petitioner traveled to Orlando. While in

Orlando, Petitioner telephoned Mr. Walden and again stated her desire to return

to employment at the beginning of the next school year. The Associate

Superintendent did not indicate to Petitioner that she had failed to provide

timely written notice of her desire to return to employment.

9. In May, 1988, Petitioner moved back to Orlando. Petitioner again

telephoned Mr. Walden. Petitioner was informed for the first time during that

telephone conversation that there may not be a teaching position available for

her at the beginning of the next school year. The reason stated by the

Associate Superintendent was that Petitioner had failed to notify the

Superintendent in writing by March 1, 1978, of her desire to return to

employment.

10. Petitioner immediately wrote a letter on May 25, 1978, restating her

desire to return to employment at the beginning of the next school year. On the

same day, Mr. Walden issued a letter to Petitioner stating that the School Board

would not automatically assign Petitioner to an employment position for the

1978-1979 school year. The reason stated in Mr. Walden's letter was that

Petitioner failed to comply with the requirement that she notify the

Superintendent in writing by March 1, 1978, of her desire to return to

employment.

11. On July 11, 1978, Mr. Walden issued a letter to Petitioner purporting

to terminate her as an employee of the School Board. The reason given for the

purported termination was that Petitioner had failed to give written notice to

the Superintendent by March 1, 1978, of her desire to return to employment.

12. The letter purporting to terminate Petitioner contained no notice of

Petitioner's rights to challenge the School Board's proposed action, including

the right to a proceeding under Section 120.57, Florida Statutes. After

informing Petitioner of the purported termination and the reason, the letter

stated:

. . . Should you wish to return as an employee

with the School Board of Orange County, we

invite you to communicate with us in the near

future.

Please accept our sincere appreciation for

your contribution to the educational program

for children in the Orange County Public

School System. 1/

13. Shortly after July 11, 1978, the School Board sued Petitioner for

repayment of funds allegedly advanced to Petitioner for a paid sabbatical in

1973. The litigation culminated in a settlement agreement and Petitioner's

reinstatement to her employment for the 1981-1982 school year with credit for

nine years of service. Petitioner has been continuously employed by the School

Board since that time and has maintained her continuing contract status with no

loss in seniority. The settlement agreement did not pay Petitioner any back

compensation and did not address Petitioner's fringe benefits, including the

right to purchase the retirement service

credit for the period of January, 1978 through the date of her reinstatement.

14. Petitioner must pay the total cost of providing the retirement credit

into the Retirement System Trust Fund. The economic burden of the retirement

service credit falls solely on Petitioner. Petitioner's purchase of the

retirement service credit will not result in any adverse economic impact on the

School Board, Respondent, or the State of Florida. The proposed purchase price

for the retirement service credit is sound for actuarial purposes.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has jurisdiction over the

subject matter of this proceeding and the parties thereto. The parties were

duly noticed for the formal hearing.

16. Petitioner has the burden of proof in this proceeding. The burden of

proof in an administrative proceeding is on the party asserting the affirmative

of the issue unless the burden is otherwise established by statute. Young v.

State, Department of Community Affairs, 567 So.2d 2 (Fla. 3d DCA 1990); Florida

Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA

1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349

(Fla. 1st DCA 1977). Petitioner must demonstrate by a preponderance of the

evidence that she is entitled to the agency action she proposes. Dileo v.

School Board of Dade County, 569 So.2d 883, 884 (Fla. 3d DCA 1990); Agrico

Chemical Co. v. State,Department of Environmental Regulation, 365 So.2d 759, 763

(Fla. 1st DCA 1978).

17. Section 121.011(3)(e), Florida Statutes, provides that any member of

the Florida Retirement System who has been suspended and reinstated without

compensation:

. . . shall receive retirement service credit

for the period of time from his (sic) date of

suspension to his (sic) date of reinstatement,

upon the member paying into the Retirement

System Trust Fund the total cost of providing

said retirement credit. (emphasis supplied)

Petitioner is a member of the Florida Retirement System. The terms of the

proposed purchase require Petitioner to pay the total cost of the retirement

credit into the Retirement System Trust Fund. If Petitioner was suspended

without pay and reinstated, her entitlement to purchase the retirement service

credit is mandated by Section 121.011(3)(e).

18. The terms "suspension" and "reinstatement" are not defined in

applicable statutes and rules. A "termination" occurs when a member ceases all

employment relationships with her employer. Section 121.021(39), Florida

Statutes.

19. A suspension is distinguishable from a termination by the right to a

prior evidentiary hearing. In Johnson v. School Board of Palm Beach County, 403

So.2d 520, 525 (Fla. 3d DCA 1981), the court held that a teacher was not

entitled to an evidentiary hearing prior to being suspended without pay. The

court provided the following analysis:

. . . the school board has an interest in

. . . avoiding the time, expense and

unnecessary disruption

. . . caused by repetitive hearings were it

to hold a presuspension hearing in addition

to a termination hearing. . . . To say that

before a tenured teacher may be suspended

without pay, the teacher is entitled to a pre-

suspension hearing with all procedural due

process safeguards when the teacher is

entitled to such a hearing prior to

termination is to create a practical

absurdity, i.e., dual and duplicate hearings.

Johnson, 403 at 525.

20. The cessation in all employment relationships between Petitioner and

her employer, within the meaning of Section 121.021(39), Florida Statutes,

occurs when the time for requesting an evidentiary hearing expires or the

evidentiary hearing is concluded and a final order is entered. In Johnson, the

court noted:

. . . When a teacher has been suspended

without pay such remains in effect until the

teacher is exonerated . . . in a final

resolution. . . . [I]f the final resolution

is unfavorable to the teacher, [her]

"termination" becomes effective from the date

of the "suspension" . . . .

Johnson, 403 So.2d at 525, n. 7.

21. If Petitioner had been exonerated after an evidentiary hearing, her

employment relationship would have continued from the date of suspension through

the date of reinstatement and thereafter. If Petitioner had not been

exonerated, the cessation of her employment relationship would have become

effective from the date of her suspension. Regardless of whether Petitioner

would have been exonerated in a proceeding under Section 120.57, Florida

Statutes, the cessation of Petitioner's employment relationship with the School

Board does not occur until the time for requesting an evidentiary hearing

expires or an evidentiary hearing is concluded and an adverse final order

entered.

22. Respondent defines the term "reinstatement" as action taken as a

result of an evidentiary hearing. As Respondent's expert testified during the

formal hearing, reinstatement occurs after:

. . . there has been some . . . hearing or

something that says, this termination was

wrong; it never should have happened; it is

rescinded; the individual is reinstated as of

this date.

Transcript at 55. See also, Transcript at 37-39.

Petitioner's reinstatement occurred after there had been a settlement agreement

with the School Board.

23. Petitioner was not terminated. She never received notice of her right

to challenge the purported termination and never received an evidentiary hearing

prior to the purported termination. Even if the School Board was contractually

required to terminate Petitioner for failure to provide the Superintendent with

timely notice and even if Petitioner had failed to provide such notice, the

School Board could not terminate Petitioner in a manner that denied her due

process rights. See Washington v. Kirksey, 811 F.2d 561 (11th Cir. 1987)

(holding that a school board had no authority to dismiss an employee without

notice of a right to a hearing even though the employee had lost his

certification to teach).

24. Petitioner was suspended without pay when the School Board attempted

to terminate her. The only action the School Board had authority to take prior

to the expiration of the time for requesting an evidentiary hearing, or prior to

the conclusion of such a hearing and the entry of an adverse final order, was

suspension without pay. Johnson, 403 at 525. Petitioner was subsequently

reinstated as a result of the settlement agreement between Petitioner and the

School Board. Although the action of the School Board was cast in the form of a

termination, it was, in substance, a suspension without pay.

25. The School Board has only that power which is expressly or by

necessary implication granted by legislative enactment. Lewis Oil Co, Inc., v.

Alachua County, 496 So.2d 184, 187 (Fla. 1st DCA 1986); Department of Highway

Safety & Motor Vehicles v. German, 451 So.2d 1013 (Fla. 3d DCA 1984); State,

Department of Environmental Regulation v. Falls Chase Special Taxing District,

424 So.2d 787, 793 (Fla. 1st DCA 1983). The right to a proceeding under Section

120.57, Florida Statutes, is: as a matter of law, a part of any agency's

personnel procedures to the extent that substantial interests are determined or

affected by an agency decision. Dore, P., "Access To Florida Administrative

Proceedings," 13 FSU Law Rev. 965, 1101-1102 (FSU College of Law 1986) (citing

Wahlquist v. School Board of Liberty County, 423 So.2d 471, 472- 475 (Fla. 1st

DCA 1982); Foreman v. Columbia County School Board, 408 So.2d 653, 653-654 (Fla.

1st DCA 1981); Webster v. South Florida Water Management District, 367 So.2d 734

(Fla. 4th DCA 1979); Witgenstein v. School Board of Leon County, 347 So.2d 1069,

1071-1072 (Fla. 1st DCA 1977)).

26. Any reasonable doubt as to the lawful exercise of a particular power

should be resolved in favor of arresting the further exercise of that power.

Edgerton v. International Company, 89 So.2d 488 (Fla. 1956); State v. Atlantic

Coast Line R. Co., 47 So 969 (Fla. 1908); Fraternal Order of Police, Miami Lodge

v. City of Miami, 492 So.2d 1122, 1124 (Fla. 3d DCA 1986). Statutory provisions

regarding pension benefits should be liberally construed in favor of the person

claiming the benefits. City Of Tampa v. State, 19 So.2d 697 (Fla. 1944); State

ex rel. Holton v. City Of Tampa, 159 So 292 (Fla. 1934); Adams v. Dickinson, 264

So.2d 17 (Fla. 1st DCA 1972); City Of West Palm Beach v. Holaday, 234 So.2d 24

(Fla. 4th DCA) affirmed, 240 So.2d 152 (Fla. 1970); City Of Hialeah v. Willey,

189 So.2d 194 (Fla. 3d DCA 1966); Fairbank v. Schlesinger, 533 F.2d 586 (D.C.

Cir. 1975).

27. Petitioner notified the Superintendent in writing by March 1, 1978, of

her desire to return to employment at the beginning of the 1978-1979 school

year. Petitioner's written request for leave of absence was received by the

School Board prior to March 1, 1978. While applicable contractual provisions

require the notice to be given to the Superintendent, the relationship of the

School Board and the Superintendent is that of principal and agent. LeDew v.

Unemployment Appeals Commission, 456 So.2d 1219, 1222 (Fla. 1st DCA 1984);

Johnson, 403 So.2d at 527-528; Hollis v. School Board of Leon County, 384 So.2d

661, 664 (Fla. 1st DCA 1980); Zorick v. Tynes, 372 So.2d 133, 142 (Fla. 1st DCA

1979); Witgenstein v. School Board of Leon County, 347 So.2d 1069, 1073 (Fla.

1st DCA 1977). The terms of the written request provided the School Board with

adequate notice of Petitioner's desire to return to employment at the beginning

of the 1978-1979 school year. Any ambiguity that may have existed in the minds

of the members of the School Board, or their agent, was or should have been

resolved by Petitioner's repeated verbal representations and written notice on

May 25, 1978.

28. Petitioner complied with the requirements of applicable rules adopted

by Respondent. The leave of absence was authorized in writing by Petitioner's

employer during her leave within the meaning of Florida Administrative Code Rule

60S-2.006(1)(a). The leave of absence does not exceed two years. Petitioner's

absence after the beginning of the 1978-1979 school year was the result of

action by the School Board which was cast in the form of a termination but was,

in substance, a suspension without pay.

29. By giving substance to the School Board's attempted termination,

Respondent, in effect, incorporates into Florida Administrative Code Rule 60S-

2.006(1)(a) contractual requirements for written notice prior to March 1, 1978.

Those contractual requirements are not imposed by the terms of Respondent's

valid existing rule. Rule 60S-2.006(1)(a) requires only that a leave of absence

be authorized in writing prior to or during the leave of absence. Petitioner

complied with the requirements of Respondent's valid existing rule. Respondent

has no authority to deviate from its own valid existing rule. Boca Raton

Artificial Kidney Center, Inc., v. Department Of Health And Rehabilitative

Services, 493 So.2d 1055, 1057 (Fla. 1st DCA 1986); Gadsden State Bank v. Lewis,

348 So.2d 343 (Fla. 1st DCA 1977); Price Wise Buying Group v. Nuzum, 343 So.2d

115, 116 (Fla. 1st DCA 1977). 2/

30. Acceptance of a school board's characterization of a termination

pursuant to various local school board procedures 3/ as dispositive of the

definition of termination for purposes of Section 121.021(39), Florida Statutes,

improperly delegates to local school boards Respondent's responsibility to

interpret a statutory definition applicable to Respondent. As a minimum

requirement, Respondent should make an independent determination of whether the

purported termination was accomplished in a manner that was within the scope of

delegated legislative authority and that preserved the member's right to due

process.

31. Respondent's unwritten deference to the characterization of a

termination by local school boards in all cases has the effect of an unwritten

policy of general applicability that is not stated in the definition of

termination set forth in statutes and rules applicable to Respondent. 4/ One

of the purposes of the administrative procedure act is to prevent "unwritten" or

"invisible" agency action. Straughn v. O'Riordan, 338 So.2d 832, 834 n.3 (Fla.

1976). An unwritten statement of general applicability is a rule within the

meaning of Section 120.52(16). McDonald v. Department Of Banking And Finance,

346 So.2d 569, 580-581 (Fla. 1st DCA 1977). A rule that is not promulgated in

accordance with formal rulemaking procedures is invalid and unenforceable.

Sections 120.535(1) and 120.68(12)(b); McDonald, 346 So.2d at 580-581.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Respondent enter a Final Order allowing Petitioner to

purchase the retirement service credit at the statutorily prescribed purchase

price.

RECOMMENDED this 26th day of July, 1993, in Tallahassee, Florida.

___________________________________

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of July, 1993.

ENDNOTES

1/ Compare the last two paragraphs in the School Board's letter of July 11,

1978, with the last paragraph in Respondent's letter of January 11, 1993,

denying Petitioner's request to purchase a retirement service c redit.

Respondent's letter states:

...This letter constitutes final agency action. If you do not agree with

this decision, you may request an Administrative Hearing in accordance with

Section 120.57, Florida Statutes, by filing a written petition within 21 days of

receipt of this letter. The enclosed Rules 28-5.111 and 28-5.201, Florida

Administrative Code, outline the appeal procedure.

No finding or conclusion is made as to whether the School Board's failure

to inform Petitioner of her right to request a formal hearing regarding the

School Board's attempted termination denied Petitioner a clear point of entry to

challenge the School Board's action.

2/ Prior to 1984, Sec. 120.68(12)(b),Fla. Stat. (1983), required remand of a

case if the exercise of agency discretion was "...[i]nconsistent with an agency

rule..." and deviation from the rule was not"...explained by the agency...." An

agency was authorized to deviate from its rule in a particular case if the

agency exposed and elucidated its reasons sufficiently to permit judicial review

within the meaning of Sec. 120.68(12)(b). McDonald v. Department of Banking and

Finance, Service Commission v. Central Corporation, 551 So. 2nd 1193, 1194 n. 2

(Fla.3d DCA 1986). In 1984, the legislature repealed the authority to the

agency. Sec. 120.68(12)(b) (1991). See alson Sec. 120.535(1).

3/ As Respondent's expert noted:

...different school boards have a lot of different leave polic[ies], and ... one

school board would grant an employee a leave of absence where another ... an

hour away... could not.

Transcript at 53-54.

4/ Respondent's expert testified that Respondent never questions the propriety

of a school board's termination and that such an issue is irrelevant to this

proceeding. See Transcript at 47-49. One of the purposes of Respondent's

proposed agency action is to prevent all similarly situated members from

purchasing a retitement service credit that is not allowed by rule. See,

Respondent's Proposed Recommended Order at 9.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3323

Petitioner's Proposed Findings Of Fact.

1.-3 Accepted

4. Rejected as irrelevant and immaterial

5.-17. Accepted

18. Irrelevant and immaterial

19.-21. Accepted

22.-24. Irrelevant and immaterial

25. Accepted

26.-27. Rejected as recited testimony

28. Irrelevant and immaterial

29.-31. Accepted

32.-37. Rejected as recited testimony

Respondents' Proposed Findings Of Fact.

1.-2. Accepted

3.-5. Irrelevant and immaterial

6. Rejected as conclusion of law

7. Accepted

8.-9. Rejected in substance

10.-13. Accepted

14.-16. Irrelevant and immaterial

17.-19. Accepted

COPIES FURNISHED:

William H. Linder, Secretary

Department Of Management Services

Knight Building, Suite 307

Koger Executive Center

2737 Centerview Drive

Tallahassee, Florida 32399-0950

A. J. McMullian, III, Director

Division Of Retirement

Cedars Executive Center, Building C

2639 N. Monroe Street

Tallahassee, Florida 32399-1560

Mark S. Levine, Esquire

245 E. Virginia Street

Tallahassee, Florida 32301

Larry D. Scott, Esquire

Assistant Division Attorney

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 to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF MANAGEMENT SERVICES

DIVISION OF RETIREMENT

LOIS K. BAUER,

Petitioner,

v. DOR CASE NO. DR93-01

DOAH CASE NO. 93-0404

DIVISION OF RETIREMENT,

Respondent.

_________________________/

FINAL ORDER

On July 26, 1993, the duly appointed Hearing Officer of the Division of

Administrative Hearings in the above-styled and numbered cause, completed and

submitted to the Division of Retirement of the Department of Management Services

and to all parties in the cause, a recommended order. A copy of that

recommended order is attached hereto, incorporated by reference herein, and made

a part hereof as "Exhibit A".

Pursuant to Rule 28-5.404, Florida Administrative Code, and Section

120.57(1)(b)4, Florida Statutes, the parties were allowed twenty (20) days

within which to submit written exceptions to that recommended order. Neither

Petitioner nor the Respondent submitted any written exceptions. Pursuant to

Section 120.57(1)(b), Florida Statutes, that recommended order came before the

undersigned Director of the Division of Retirement, an agency head, for final

agency action and for a final agency order in the cause.

ISSUE

The issue for determination in this case is whether the Petitioner is

entitled to purchase a retirement service credit for approximately three and

one-half years pursuant to Section 121.011(3)(e), Florida Statutes.

The record in this cause consists of all documents filed in this cause

either with the Hearing Officer or with the Division of Retirement, including

all documents received in evidence at the hearing as exhibits.

After review of the record in this case, the Division accepts all the

findings of fact as set forth by the Hearing Officer in his recommended order.

However, the Division is unable to accept all of the conclusions of law as set

forth by the Hearing Officer in his recommended order.

FINDINGS OF FACT

The Division hereby adopts and incorporates by reference the findings of

fact set forth in the recommended order.

CONCLUSIONS OF LAW

1. The Division of Retirement has jurisdiction of the parties and the

subject matter of this proceeding. Section 120.57(1), Florida Statutes (1991).

2. Chapter 121, Florida Statutes (1991), also known as the Florida

Retirement System Act, established the Florida Retirement System. Section

121.031(1), Florida Statutes (1991), grants the Division of Retirement authority

to promulgate rules for the effective and efficient operation of the retirement

system.

3. Section 120.57(1)(b)(10), Florida Statutes (1991), in part provides:

The agency may adopt the recommended

order as the final order of the agency.

The agency in its final order may reject

or modify the conclusions of law and

interpretation of administrative rules in

the recommended order. The agency may

not reject or modify the findings of

fact, including findings of fact that

form the basis for an agency statement,

unless the agency first determines from a

review of the complete record, and states

with particularity in the order, that the

findings of fact were not based upon

competent substantial evidence or that

the proceedings on which the findings

were based did not comply with essential

requirements of law.

The conclusions of law as set forth in paragraphs 15 through 28 are

accepted. However, those conclusions of law as set forth in paragraphs 29

through 31 are hereby expressly rejected as not being supported by competent

substantial evidence in the record and constitute a clearly erroneous

application of law, and are not necessary to reach a decision in this case.

4. The Division of Retirement did recognize that the Petitioner signed a

valid release giving up all causes of action, claims, and demands in connection

with her employment and termination from the School Board. She then entered

into a stipulated settlement which resulted in a dismissal of the litigation

between her and the School Board. Any objections by the Petitioner were waived

by the release and settlement agreement.

5. Contrary to the Hearing Officer's conclusion, the Division of

Retirement in applying its Rule 60S-2.006(1)(a), did not incorporate substantive

requirements not imposed by the agency's rule. The Division did give substance

to the terms of the Petitioner's stipulated agreement between herself and the

School Board.

6. Despite the Hearing Officer's conclusion at paragraph 30, the Division

of Retirement has no delegated legislative authority to conduct an independent

proceeding to review the personnel decisions of local agencies and determine

whether personnel actions by these local agencies fall within the purview of

their delegated legislative authority.

Based upon the foregoing, it is,

ORDERED and DIRECTED that Petitioner, Lois K. Bauer, SSN 410-50-3992, be

allowed to purchase the retirement service credit.

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS

FINAL ORDER 15 ENTITLED TO JUDICIAL REVIEW

PURSUANT TO SECTION 120.68, FLORIDA STATUTES.

REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA

RULES OF APPELLATE PROCEDURE. SUCH

PROCEEDINGS ARE COMMENCED BY FILING ONE COPY

OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF

THE DIVISION OF RETIREMENT, AND A SECOND COPY,

ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW,

WITH THE DISTRICT COURT OF APPEAL, FIRST

DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL

IN THE APPELLATE DISTRICT WHERE THE PARTY

RESIDES. THE NOTICE OF APPEAL MUST BE FILED

WITHIN 30 DAYS OF RENDITION OF TEE ORDER TO BE

REVIEWED.

DONE and ORDERED this 20th day of September, 1993, at Tallahassee, Leon

County, Florida

______________________________

A. J. MCMULLIAN III, Director

Division of Retirement

Cedars Executive Center

2639 North Monroe Street

Tallahassee, Florida 32399-1S60

[phone]

CLERK'S CERTIFICATE

I HEREBY CERTIFY that this Final Order was filed in the official records of

the Division of Retirement on this 20th of September, 1993.

________________________________

BETTY ANN LEDFORD

Clerk

Division of Retirement

Cedars Executive Center

2639 North Monroe Street

Tallahassee, Florida 32399-1560

[phone]

Copies furnished to:

Mark S. Levine, Esquire

245 East Virginia Street

Tallahassee, Florida 32301

Honorable Daniel Manry

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Larry D. Scott

Assistant Division Attorney

Department of Management Services

Division of Retirement

Cedars Executive Center

Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560