99-000704 Patrick Krank vs. Division Of Retirement Status: Closed Recommended Order on Friday, August 20, 1999.

Summary: Case spans 17 years of statutes governing "grandfathered" correctional officer certifications and the pre-requisites to special risk and special risk administrative support class retirement classifications.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICK KRANK, )

)

Petitioner, )

)

vs. ) Case No. 99-0704

)

DIVISION OF RETIREMENT, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Upon due notice, this cause came on for a disputed fact

hearing on May 19, 1999, in Gainesville, Florida, before Ella

Jane P. Davis, a duly-assigned Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bill Salmon, Esquire

Post Office Box 1095

Gainesville, Florida 32602

For Respondent: Emily Moore, Esquire

Division of Retirement

Cedars Executive Center

Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUES

(1) Should Respondent Division of Retirement grant

Petitioner's request to be included for retirement purposes in

the Special Risk Class ( SRC) from July 1, 1981 through

October 24, 1985?

(2) Should Respondent Division of Retirement grant

Petitioner's request to b e included in the Special Risk

Administrative Support Class ( SRASC) for the period October 25,

1985 until January 1, 1998?

PRELIMINARY STATEMENT

By a letter dated November 12, 1998, Respondent advised

Petitioner that it was denying his request for inclusion in SRC

and SRASC. Petitioner contested the denial, and the matter was

referred to the Division of Administrative Hearings on or about

February 17, 1999.

On May 17, 1999, Respondent filed, via FAX to Tallahassee,

Florida, a single document, captioned "Motion to Dismiss and

Motion for Hearing." However, it was not received by this

Administrative Law Judge, who was already in Gainesville,

Florida. When Respondent presented its Motion to Dismiss at the

commencement of the disputed fact hearing on May 19, 1999, the

Motion was marked "filed in open court" with the date. Following

oral argument, the Motion to Dismiss was denied.

The parties' prehearing stipulation had been filed on

April 30, 1999. Paragraph (e) thereof, purportedly stated agreed

admissions of fact, but it was partially retracted by Respondent

in the course of argument on the Motion to Dismiss. Following

argument, it appeared that the parties had never had a meeting of

the minds on the subject, so all "disputed facts" listed in

paragraphs (g) 1-3 were submitted to trial.

At the request of the parties, current Section

121.0515(2)(c) and Section 943.19, Florida Statutes (1981), and

Rules 60S-1.0053 and 60S-1.0054(2), Florida Administrative Code,

were officially recognized.

Petitioner testified on his own behalf.

Respondent's Motion to Dismiss was renewed at the close of

Petitioner's case-in-chief and again was denied.

Respondent presented the o ral testimony of Kim Baldry and

David Ragsdale, Benefits Administrator for Respondent. Seventeen

joint exhibits were admitted by stipulation. Petitioner's

Exhibit 1, constituting two pages, was identical to Joint Exhibit

13, and so was never offered. Respondent's Exhibit 1 was

admitted in evidence.

No transcript was provided.

At the conclusion of the disputed fact hearing, the parties

agreed that proposed recommended orders would be filed within

15 days, or by June 3, 1999.

On June 2, 1999, Respondent filed an unopposed Motion for

Extension of Time to File Proposed Recommended Order.

On June 8, 1999, Petitioner filed a Post-Trial Motion for

Award of Attorney's Fees. On the same date, an Order extending

the filing date for post-hearing proposals was entered.

On June 10, 1999, both parties filed their respective

Proposed Recommended Orders. On June 15, 1999, Respondent filed

its Motion to Amend Proposed Recommended Order to indicate a

reference to endnotes.

On June 22, 1999, Respondent filed its Response to

Petitioner's Post-Trial Motion for Award of Attorney's Fees.

On June 23, 1999, an Order was entered granting Respondent's

Motion to Amend its proposal. Th e same Order indicated that the

issue of attorney's fees would be addressed in this Recommended

Order.

FINDINGS OF FACT

1. At all times material, Alachua County employed a jail

facility Director who had overall supervision of correctional

officers and special risk employees and who was ultimately

responsible for restraint of inmates.

2. Petitioner was continuously employed by the Alachua

County Department of Corrections at the Alachua County Jail from

the date of his initial employment as a Correctional

Officer I on April 22, 1974, to his lay-off as Assistant Director

of the Alachua County Jail on January 1, 1998.

3. Political opponents of Petitioner raised the issues of

his eligibility for SRC and SRASC classification and the validity

of his correctional officer certification beginning approximately

in 1996.

4. Petitioner began work April 22, 1974, as a Correctional

Officer I (uniformed line officer) and was recommended by his

employer Alachua County and approved by Respondent for SRC

membership, effective April 22, 1974.

5. Respondent reviews applications for SRC and SRASC for

completeness with no audit beyond the certification by the member

and the employer. Respondent may approve, retroactive to the

date specified in the application. If at any time it is

determined that a member is not eligible for inclusion in a

particular retirement category, the member is removed,

retroactive to the date of ineligibility.

6. Petitioner was certified as a correctional officer by

the Council of Correctional Standards on July 1, 1974.

7. Petitioner was promoted to an Administrative Assistant I

position, effective May 18, 1981. The Administrative Assistant I

position did not require certification as a correctional officer.

8. On May 18, 1981, Petitioner was a certified correctional

officer in a position that did not require certification.

9. Effective July 1, 1981, the Florida Legislature merged

the Council of Correctional Standards, which had certified

Petitioner on July 1, 1974, with the Law Enforcement Standards

Council, to form the Criminal Justice Standards and Training

Commission ( CJSTC), an arm of the Florida Department of Law

Enforcement ( FDLE). In so doing, the Legislature provided

Section 943.19(3), Florida Statutes, to "grandfather-in" certain

correctional officers' certifications.

10. On July 1, 1981, Petitioner was a cert ified

correctional officer in a position that did not require

certification.

11. Sometime later in 1981, the newly-formed CJSTC

requested that Alachua County send the CJSTC a list of all

certified correctional officers in its employ. Such a list was

prepared by Alachua County personnel and forwarded to the CJSTC.

The list prepared by the County did not include Petitioner's

name, presumably because at that time, as an Administrative

Assistant I, he was not serving in a position requiring

certification a s a correctional officer.

12. Petitioner was promoted to the position of

Administrative Operations Supervisor, effective March 22, 1982.

This position also did not require correctional officer

certification.

13. Although Petitioner was employed as an Administrative

Assistant I beginning May 18, 1981, and as an Administrative

Operations Supervisor beginning March 22, 1982, he did not make

application for inclusion in SRASC until March 17, 1986.

14. On April 23, 1986, Alachua County recommended

Petitioner's SRASC classification. Kim Baldry, Director of

Personnel for Alachua County since 1983, signed off on a form

stating that Petitioner:

Was employed for training and/or career

development . . . and is subject to

reassignment at any time to a position

qualifying for special risk membership.

15. Respondent approved Petitioner's SRASC membership

retroactive to October 25, 1985.

16. Petitioner's November 13, 1987, application for

inclusion in SRC as "Assistant Director/Administrative Support,"

was neither recommended by Alachua County, nor approved by

Respondent.

17. In July 1994, the Administrative Operations Supervisor

position was reclassified, without any change in job description

or duties, as Assistant Director/Administrative Support, and

Petitioner served in that capacity until his lay-off in 1998.

The position never required a correctional officer certification.

18. Petitioner was not employed as a uniformed correctional

officer from May 18, 1981, to his lay-off in 1998.

19. Petitioner did not hold a position for which the

minimum requirements included certification as a correctional

officer from May 18, 1981, until his lay-off in 1998.

20. Kim Baldry testified that although Petitioner had many

job titles during his 1981 to 1998 employment, his actual duties

from 1981 to 1998 were consistently over personnel, budget, and

fiscal matters; that he primarily supervised fiscal assistants

and accounting clerks; and that he was never a jail "supervisor"

as such. She did, however, concede that she had dealt with him

over correctional officer discipline from 1983 to 1998.

21. Petitioner and Ms. Baldry concurred that from 1981 to

1998, his duties remained basically the same, and that at various

times, he was known as "Acting Assistant Director" and "Assistant

Director" and when the Director was out of town, Petitioner

served as "Acting Director."

22. Petitioner testified without refutation that from 1981

to 1998, his duties always included personnel oversight of line

correctional officers; overseeing payroll leave and timecards for

such officers; and screening, interviewing, and processing

applications for new correctional officers. One of his job

descriptions confirms this.

23. Petitioner also testified that he had daily contact

with inmates of the Alachua County Jail in the commissary,

medical services area, and food preparation area, and with

trustees in support services, and that he regularly appeared

before the County Commission concerning budget, jail crowding,

and the need for more correctional officers.

24. Petitioner's daily primary duties and responsibilities

after May 18, 1981, were neither the direct custody, nor the

physical restraint, of prisoners or inmates at Alachua County

Jail. His daily primary duties were fiscal, budgeting,

accounting, and personnel administration in nature. He was not a

line officer on the floor with special risk officers and inmates

on a daily basis, although he did consult with some line and

special risk correctional officers on personnel matters,

including disciplinary matters. Actual discipline went through

correctional officer captains and lieutenants.

25. Petitioner stated that when he was an Administrative

Assistant I, he was subject to reassignment as a line

correctional officer at any time and that when he was

Administrative Operations Supervisor, there were two other

supervisors who oversaw work release and jail supervision,

respectively, on a day-to-day basis. At some point, one position

was eliminated and one was assigned to the court system.

26. From 1994 to 1995, when Petitioner was Assistant

Director, there was one other Assistant Director. Both Assistant

Directors reported directly to the Director of Alachua County

Jail, who had total oversight of the jail operation. However,

when both the Director and the other Assistant Director were out

of town, or later, when Petitioner was the sole Assistant

Director, the Director delegated his duties to Petitioner for the

interim, and Petitioner was left directly in charge of all

functions, including security, supervision of correctional

officers, and supervision of inmates.

27. When questions concerning his certification and

retirement status arose in 1996, Respondent requested that

Alachua County personnel look into the matter because he

considered it to be his employer's problem and not his own.

28. Alachua County formally requested review by the

Respondent of Petitioner's retirement designation, indicating

that it did not believe that Petitioner should continue in SRC or

SRASC, because he was serving the employer in an administrative

capacity.

29. After considerable correspondence back and forth, FDLE,

the agency that houses the CJSTC which has the responsibility and

authority to certify correctional officers, advised Alachua

County by a May 24, 1996, letter that:

. . . A review of the files in the Division

of Criminal Justice Standards and Training

indicates that Mr. Krank was a certified

correctional officer with the Corrections

Council. That council was merged with the

Law Enforcement Standards Council to form the

Criminal Justice and Training Commission

( CJSTC) in 1981. Officers employed in

correctional officer positions were

" grandfathered" into the CJSTC at that time .

Mr. Krank was not employed as a correctional

officer at the time of the merger, and,

therefore, was not grandfathered into the

CJSTC . It is suggested that if Mr. Krank

requests more specific information concerning

the grandfather clause in the statute, that

he contact the State Department of

Corrections. I have enclosed a copy of the

1983 Florida Statutes reference [sic] the

"Saving Clause." However, it does not go

into any detail as to what the process was at

that time. (Joint Composite Exhibit 5)

(Emphasis supplied.)

30. Respondent received a May 21, 1998, letter from FDLE,

stating:

After a thorough search of the Automated

Training and Management System ( ATMS2),

historical databases, and records stored on

microfiche, there is no record of Mr. Krank

working as an officer in Florida.

Citing Rule 11B-27.0026, Florida Administrative Code, first

enacted in 1994, FDLE went on to say that it considered

Petitioner to be a certified correctional officer separated from

employment and not re-employed within four years after the last

date of separation, who therefore needed to reactivate his

certification. (Joint Exhibit 10). The undersigned's research

shows that Rule 11B-27.0023, Florida Administrative Code, new in

1982, provided that a certified correctional officer separated

from employment and not re-employed within four years must

reactivate his or her certification and that Rule 11B-27.0026,

Florida Administrative Code, cited in FDLE's letter, actually

explains how to reactivate certification.

31. In reliance on FDLE correspondence, Respondent removed

Petitioner from the SRC and SRASC classifications.

32. Subsequent to being laid-off by Alachua County in 1998,

Petitioner accepted a job as a correctional officer trainee with

the Florida State Prison on February 2, 1999.

33. Petitioner was hired as a correctional officer trainee

at Florida State Prison, pending resolution of the instant case.

Petitioner's arrangement with Florida State Prison personnel was

that he would attend training from February 22, 1999, through

May 25, 1999, after which he would have to pass a test

administered by FDLE on June 29, 1999, in order to become a

certified correctional officer and continue in the correctional

officer position for which he had been hired.

CONCLUSIONS OF LAW

34. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.57(1), Florida Statutes.

On the Merits

35. Herein, Petitioner bears the duty to go forward and the

burden of proof by a preponderance of the evidence.

36. Respondent's post-hearing proposal concedes that if

FDLE's determination of lack of certification were reversed, that

reversal would require Respondent to grant SRC and SRASC to

Petitioner as claimed. Although FDLE is not a party to this

cause and the undersigned is not bound by either its

determination nor the limited statutory and rule citations

provided by the parties, FDLE's interpretation of the statutes

and rules it administers and the Respondent's interpretation of

the statutes and rules which Respondent administers are

respectively entitled to great weight, and neither interpretation

should be overturned unless clearly erroneous. Summersport

Enterprises Ltd., v. Pari-Mutuel Commission , 493 So. 2d 1085

(Fla. 1st DCA 1986); Shell Harbor Group, Inc., v. Department of

Business Regulation , 487 So. 2d 1141 (Fla. 1st DCA 1986).

37. Chapter 943, Florida Statutes (1981), provided, in

pertinent part:

Section 943.09, Division of Criminal Justice

Standards and Training. - -

(1) There is created a Division of Criminal

Justice Standards and Training in the

Department of Law Enforcement.

* * *

Section 943.10 Definitions; ss. 943.085-

943.255. - - The following words and phrases

as used in ss. 943.085-943.255 shall have the

following meanings unless the context

otherwise requires:

* * *

(2) "Correctional officer" means any person

who is appointed or employed full time by the

state or any political subdivision thereof

whose primary responsibility is the

supervision, protection, care, custody, and

control of inmates within a correctional

institution ; however, the term "correctional

officer" does not include any secretarial,

clerical or professionally trained personnel.

(Emphasis supplied.)

* * *

(4) "Commission" means the Criminal Justice

Standards and Training Commission within the

Department of Law Enforcement.

* * *

(11) "Basic employment certification" means

that an individual has satisfied the

requirements of this chapter and the rules

promulgated thereunder and as such is

authorized to be employed or appointed as a

correctional officer or a law enforcement

officer, part-time law enforcement officer,

or auxiliary law enforcement officer.

* * *

Section 943.12 Special Powers; law

enforcement and correctional officer

training. - - In connection with the

employment and training of law enforcement

officers, part-time law enforcement officers,

auxiliary law enforcement officers, and

correctional officers, the commission in

cooperation with the department, shall have

special power to:

(1) Establish uniform minimum standards for

the employment and training of law

enforcement officers and correctional

officers in specifically designed programs in

the various criminal justice disciplines,

including standards with respect to parking

enforcement specialists as described in s.

316.640(3)(c) and including qualifications

and requirements as may be established by the

commission subject to specific provisions

which are contained in this chapter.

* * *

(6) Issue certificates of competency to

persons who, by reason of experience and

completion of advanced education or inservice

or specialized training, are especially

qualified for particular aspects or

disciplines of criminal justice.

* * *

Section 943.19 Saving clause. - -

* * *

(3) Correctional officers employed between

July 1, 1976, and July 1, 1981, shall be

required to meet the provisions of Section

943.12(1) within 180 days after July 1, 1981,

as a condition of continued employment unless

certified by the Correctional Standards

Council prior to July 1, 1981 . (Emphasis

supplied.)

38. The statutory definition of "correctional officer" has

remained essentially the same to date.

39. Section 943.145, Florida Statutes (1981),

covers reasons and procedures for de-certifying correctional

officers. None of its provisions is fully on point for this

case, although read as a whole, the statute, like FDLE's current

position, contemplates continued certification to be dependent

upon continued employment as a correctional officer and that loss

of correctional officer employment results in deactivation of

correctional officer certification, requiring reactivation upon

re-employment. It is not until 1993 that Section 943.139(1),

Florida Statutes, provided:

Separation from employment or appointment

includes any firing, termination,

resignation, retirement, or voluntary or

involuntary extended leave of absence of any

officer. (Emphasis supplied.)

40. An item in Section 943.145, Florida Statutes, (1981),

that is of particular note for this case is contained in

Subsection (8):

Inactivation of certification is a

ministerial act which occurs automatically

upon notification of termination of

employment. (Emphasis supplied.)

41. Section 121.0515(1), Florida Statutes, sets forth the

legislative intent in creating SRC membership. It reads as

follows:

(1) LEGISLATIVE INTENT. In creating the

Special Risk Class of membership within the

Florida Retirement System, it is the intent

and purpose of the Legislature to recognize

that persons employed in certain categories

of law enforcement, firefighting, and

criminal detention positions are required as

one of the essential functions of their

positions to perform work that is physically

demanding or arduous, or work that requires

extraordinary agility and mental acuity, and

that such persons, because of diminishing

physical and mental faculties, may find that

they are not able, without risk to the health

and safety of themselves, the public, or

their co-workers, to continue performing such

duties and thus enjoy the full career and

retirement benefits enjoyed by persons

employed in other positions and that, if they

find it necessary, due to the physical and

mental limitations of their age, to retire at

an earlier age and usually with less service,

they will suffer an economic deprivation

therefrom. Therefore, as a means of

recognizing the peculiar and special problems

of this class of employees, it is the intent

and purpose of the Legislature to establish a

class of retirement membership that awards

more retirement credit per year of service

than that awarded to other employees;

however, nothing contained herein shall

require ineligibility for special risk

membership upon reaching age 55.

42. The criteria for inclusion in SRC are contained in

Section 121.0515(2)(c) Florida Statutes, as follows:

(2) Criteria- A member, to be designated as

a special risk member, must meet the

following criteria:

(c) The member must be employed as a

correctional officer and be certified or

required to be certified, in compliance with

s. 943.1395. In addition, the member's

primary duties and responsibilities must be

the custody, and physical restraint when

necessary, of prisoners or inmates within a

prison, jail, or other criminal detention

facility , or while on work detail outside the

facility, or while being transported; or the

member must be the supervisor or command

officer of a member or members who have such

responsibilities; provided, however,

administrative support personnel, including,

but not limited to, those whose primary

duties and responsibilities are in

accounting, purchasing, legal and personnel,

shall not be included; however,

superintendents and assistant superintendents

shall participate in the Special Risk Class .

(Emphasis supplied.)

43. SRASC membership is covered in Section 121.0515(7)

Florida Statutes:

(a) A special risk member who is moved or

reassigned to a nonspecial risk law

enforcement, firefighting, or correctional

administrative support position with the same

agency , or who is subsequently employed in

such a position with any law enforcement,

firefighting, or correctional agency under

the Florida Retirement System, shall earn

credit for such service at the same

percentage rate as that earned by a regular

member. Notwithstanding the provisions of

subsection (4), service in such an

administrative support position shall, for

purposes for s. 121.091, apply toward

satisfaction of the special risk normal

retirement date, as defined in s.

121.021(29)(c), provided that, while in such

position, the member remains certified as a

law enforcement officer, firefighter, or

correctional officer; remains subject to

reassignment at any time to a position

qualifying for special risk membership; and

completes an aggregate of 10 or more years of

service as a designated special risk member

prior to retirement . (Emphasis supplied.)

(b) Upon application by a member, the

provisions of this subsection shall apply,

with respect to such member, retroactively to

October 1, 1978.

(c) The division shall adopt such rules as

are required to administer this subsection.

44. Rule 60S-1.0053, Florida Administrative Code, governs

SRC membership:

60S-1.0053 Criteria for Special Risk

Membership - - Correctional Officers.

The criteria set forth below shall be used

pursuant to Section 60S-1.005 in determining

membership in the special risk class for

members who are filling correctional officer

positions, regardless of the title of such a

position.

(1) Any member who seeks to be approved for

special risk membership under this section

must be certified or required to be certified

as a correctional officer in compliance with

the Criminal Justice Standards and Training

Commission, as provided in Section 943.1395,

F.S.

(2) Any member who seeks special risk

membership must hold one of the following

correctional officer positions :

(a) Correctional officer whose primary duty

and responsibility is the custody and

physical restraint, when necessary, of

prisoners or inmates within a prison, jail,

or other criminal detention facility , or

while on work detail or while being

transported outside the facility.

(b) Command officer or supervisor of a

special risk member or members holding a

position as described in (2)(a) above.

(c) Superintendent or Assistant

Superintendent (regardless of title) of a

correction or detention facility where duly

committed inmates are confined, housed, or

maintained and where correctional officers

are employed. Superintendent shall mean the

person directly in charge of the day to day

operations of a specific correction or

detention facility. Assistant Superintendent

shall mean the one person whose

responsibilities include direct line

authority from the Superintendent over all

subordinate employees for the day to day

operations at the facility . If no one

employee in a corrections facility has such

responsibility, then for retirement purposes

there is no assistant superintendent at that

facility , except that in large state

institutions there may be more than one

assistant superintendent if the institution

is divided into units, each having an

assistant superintendent with direct line

authority from the superintendent over all

subordinate employees for the day to day

operations within the unit.

(3) No administrative support personnel,

including but not limited to, those whose

primary duties and responsibilities are in

accounting, purchasing, legal, and personnel,

shall be admitted to special risk

membership. (Emphasis supplied.)

45. Rule 60S-1.0054(1) Florida Administrative Code, states

the Legislature's intent at Section 121.0515(7), Florida

Statutes, in creating the SRASC, as follows:

(1) INTENT -- In creating Special Risk

Administrative Support Class within the

Florida Retirement System, the Legislature

recognizes that when special risk members are

employed or reassigned for training, career

development or to fill a critical agency need

they often fail to meet the criteria for

special risk membership. They are then

placed in the regular class of membership

thereby losing the earlier retirement date

and 2 percent retirement service credit

offered special risk members. While it is

not the intent of the Legislature to continue

to provide 2 percent retirement service

credit for such members upon employment or

reassignment to non-special risk positions,

it is intended that such members who qualify

for Special Risk Administrative Support Class

membership and complete 10 years of special

risk service shall be entitled to count such

Special Risk Administrative Support Class

service towards their special risk normal

retirement date.

46. Rule 60S-1.0054(2), Florida Administrative Code,

provides the requirements for inclusion in SRASC:

(2) Eligibility -- . . . , a member being

reassigned or employed by an agency shall

participate in the Special Risk

Administrative Support Class if:

(a) The member is employed by an agency

whose primary purpose is law enforcement,

firefighting, or corrections, or if the

employer has multiple responsibilities, the

member must be employed by a unit of the

agency whose primary purpose is law

enforcement, firefighting, or corrections and

(b) The member is employed or reassigned by

his employer to a non-special risk position

which provides training and/or career

development opportunities to the member, or

fulfills a critical agency need; and

(c) The member has participated in The

Special Risk Class; and

(d) The member remains certified by the

appropriate authority; and

(e) The member is subject to reassignment at

any time to a special risk position.

(Emphasis supplied.)

47. Also of note is the following current FDLE

Rule 11B-27.0023, Florida Administrative Code, first effective in

any form in 1982, which provides in pertinent part:

(2) Maintenance. On or after July 1, 1985,

each certified officer shall be required to

receive periodic Commission-approved

continuing training or education, at the rate

of 40 hours every four (4) years as specified

in the following paragraphs:

(a) For those officers initially certified

on or before July 1, 1985, training shall be

completed by June 30, 1989, and every four

(4) years thereafter; and

(b) For those officers certified after

July 1, 1985, the mandatory retraining

deadline shall be June 30th following the

officer's four (4) year anniversary date.

Example

Original Certification: November 21, 1987

Four Year Anniversary Date: November 21, 1991

Mandatory Retraining Deadline: June 30, 1992

(c) Training used to satisfy the mandatory

retraining requirement shall be submitted by

the employing agency to Commission staff by

completing a Mandatory Retraining Report form

CJSTC-74, revised October 27, 1998, hereby

incorporated by reference. The information

on the form CJSTC-74, may be electronically

transmitted via the Commission's Automated

Training Management System ( ATMS2).

* * *

(f) In the event that an officer has failed

to meet the requirements of Rule 11B-

27.0023(2), F.A.C., the certificate shall

become inactive until the employing agency

provides documentation to the Commission

staff establishing that the continuing

training or education requirements have been

satisfied. Upon receipt and acceptance of

the documentation by Commission staff, the

officer's certificate shall be placed in an

active status, and the agency shall be

notified of the date of such action.

(Emphasis supplied.)

* * *

(j) Any officer who has a lapse in service

of under four (4) years, shall complete the

mandatory retraining requirement prior to

resuming active service with an agency. An

officer who wishes to claim training as

mandatory retraining, which was taken during

a period when their certification was

inactive, shall provide proof of the training

to the prospective employing agency. The

employing agency shall determine if the

continuing training or education requirements

have been satisfied, and shall complete and

submit a Mandatory Retraining form CJSTC-74,

and documents to Commission staff. (Emphasis

supplied.)

48. The "facts" are clear that Petitioner was continuously

employed with the same employer and therefore, continuously

eligible for regular state retirement benefits, but Petitioner

was not continuously employed as a "correctional officer," as

that term has been consistently defined by statute.

49. The "law" is less clear. Although some of the

applicable statutes seem to refer to mere employment and

employment as a correctional officer interchangeably, FDLE's

rules have established that inactivation of certification occurs

automatically upon a lapse in service as a correctional officer

or upon a failure to attain continuing educational credits

within specified periods. Thus, I conclude that the thrust of

Chapter 943, Florida Statutes, and the Florida Administrative

Code rules promulgated by FDLE through the years hinge upon the

concept that an employee must continue his/her correctional

officer certification and simultaneously serve as a correctional

officer, not that he or she must simply remain in continuous

service with the same public employer and within the general

population of the State Retirement System. Service as a

correctional officer may be by any job title, but it must be

service as a "correctional officer" as defined by statute, in

order to maintain active correctional officer certification.

50. The facts are clear that Petitioner was a uniformed,

certified line correctional officer from April 22, 1974, until

May 18, 1981, seven years, and as such is entitled to SRC for

that period. That period of time is not at issue.

51. Concerning Petitioner's claim of SRC for the period of

July 1, 1981, through September 30, 1985, I have considered the

following: Petitioner was still certified on July 1, 1981.

Alachua County's failure to physically transmit his

certification or job description/position to CJSTC is not

controlling. The transmittal in itself was purely a ministerial

act. Pursuant to Section 943.19(3), Florida Statutes, the

saving clause of the 1981 statute, Petitioner would have

remained certified, provided he continued acting as a

corrections officer and providing that he maintained his

continuing education credits. Because the certification is in

the nature of a property right and the statute in 1981 was

somewhat unclear as to the issue of "employment" or "employment

as a correctional officer," any ambiguity towards retaining his

certification should be resolved in Petitioner's favor. "On the

cusp," as it were, of July 1, 1981, the rules did not clarify

the status of "inactive" certifications; the statute considered

inactive certifications to be purely ministerial; and the

statutory saving clause did not make any distinction concerning

active or inactive certification status. Therefore, I conclude

that FDLE's determination that Petitioner's certification was

not grandfathered-in is erroneous; that Petitioner's

certification indeed carried over in 1981; and that whether

Petitioner was thereafter entitled to SRC benefits depended upon

the functions he was performing.

52. Job titles alone do not disqualify from SRC

eligibility, and it is not significant that the employer did not

initiate a removal of Petitioner from SRC during this period of

time. It is significant that Petitioner's primary

responsibility as an Administrative Assistant I from May 18,

1981 to March 22, 1982, and as Administrative Operations

Supervisor from March 22, 1982 to October 24, 1985, was not the

supervision, protection, care, custody, and control of inmates

within a correctional institution. See Section 943.09(2),

Florida Statutes (1981), and Rule 60S-1.0053(2)(a), Florida

Administrative Code. Moreover, he did not meet the requirements

of SRC qualification. Petitioner's job description did not

require correctional officer certification. It is pivotal that

Petitioner was not "employed as a correctional officer." His

primary duties and responsibilities were not the custody or

physical restraint of prisoners or inmates. See

Rule 60S-1.0053(2)(a), Florida Administrative Code. He was not

the supervisor or command officer of correctional officers with

those responsibilities. See Rule 60S-1.0053(2)(b), Florida

Administrative Code. He was, rather, administrative support

personnel whose primary duties and responsibilities were in

accounting and personnel, job functions specifically precluded

from SRC. See Section 121.0515(2)(c), Florida Statutes, and

Rule 60S-1.0053(2)(c) and (3), Florida Administrative Code.

53. Between May 18, 1981 and October 24, 1985, Petitioner

also did not meet the commonly understood definitions of

"command officer," "superintendent," or "assistant

superintendent." See Rule 60S-1.0053(2)(b) and (c), Florida

Administrative Code.

54. Herein, Respondent has not attempted to prove-up any

agency policy or interpretation of the terms "supervisor,"

"superintendent," or "command officer," but has submitted two

cases. One of those cases, State of Florida, Department of

Administration, Division of Retirement v. Moore , 524 So. 2d 704

(Fla. 1st DCA 1988), holds that, "If a term is not defined in a

statute or rule, its common, ordinary meaning applies." Accord,

Shell Harbor Group, Inc., v. Department of Business Regulation,

supra. , and Boca Raton Artificial Kidney Center, Inc., v.

Department of Health and Rehabilitative Services , 493 So. 2d

1055 (Fla. 1st DCA 1986). The common, ordinary meaning of

"command officer" is "one who has authority to command." Hence,

the term refers to a line correctional officer who orders and

supervises the daily activities of subordinate line correctional

officers in their primary duties of control and management of

prisoners and inmates. Processing time cards and leave requests

and personnel administration duties related to correctional

officer disciplinary matters is not equivalent to the hazardous

duty of command decisions regarding inmates as contemplated by

the statute. Petitioner has not demonstrated that he qualified

as a "command officer" from July 1, 1981 through October 24,

1985.

55. The terms, "superintendent" or "assistant

superintendent," as used in Rule 60S-1.0053(2)(c) require that

the member have individual "direct line authority" over others

or "direct line authority" from the Superintendent (Director)

through the member over all subordinate employees for the day-

to-day operation of the facility. In the presence of one or two

other "assistants" at all or most times, and in light of

Petitioner's clear status in the excluded group of persons whose

primary duties and responsibilities were accounting and

oversight of personnel matters, ( See Rule 60S-1.0053(3), Florida

Administrative Code), Petitioner has not demonstrated that he

qualified as a "superintendent" from July 1, 1981, through

October 24, 1985. See also the similar discussions and

conclusions in State of Florida, Department of Administration,

Division of Retirement v. Moore , supra , and Hillman vs. Division

of Retirement , 446 So. 2d 158 (Fla. 1st DCA 1984).

56. The intent of the SRC category is to provide an extra

cushion of monetary and early retirement protection for those

employees exposed to the physical and emotional rigors

associated with controlling prisoners and inmates on a day-to-

day basis, and Petitioner has not met those requirements since

1981.

57. With regard to Petitioner's claim to SRASC

classification from October 25, 1985 until January 1, 1998, it

is of concern that Ms. Baldry, on behalf of the employer, signed

a statement on April 23, 1986, that Petitioner was eligible for

SRASC and subject to reassignment in a special risk category.

It also concerns me that the date of October 25, 1985, seems to

have been selected without regard to any change in Petitioner's

title, job description, or primary duties. The next job title

change after March 22, 1982, was July 1994, when Petitioner

became "Assistant Director/Administrative Support." 1/

58. With regard to the period of October 25, 1985, through

January 1, 1998, Petitioner had no lapse in employment, so he

had no lapse in entitlement to general retirement credits, but

by October 25, 1985, he had been serving in a position not

requiring correctional officer certification and performing

duties which did not make him a "correctional officer,"

regardless of job title, for more than four years. By that

date, all of FDLE's rules cited supra were in place. Even

assuming that Petitioner's certification was in effect on

July 1, 1981, that certification became "inactive" after four

years of his not being in a correctional officer position,

pursuant to Rule 11B-27.0023, Florida Administrative Code.

Moreover, in light of FDLE's correspondence to the effect that

none of its databases reflect Petitioner's certification or

service as a correctional officer, there is no credible proof

that Petitioner was maintaining his certification through

continuing education credits.

59. Section 121.0515(7), Florida Statutes, requires that to

qualify for SRASC, ten years of aggregate SRC qualification be

earned sometime before retirement. That statute and

Rule 60S-1.0054, Florida Administrative Code, require only that

some part of the SRC time be served before SRASC assignment.

SRASC eligibility does not require employment in a hazardous

position or as a correctional officer, but it does require that

certification be maintained, and Rule 60S-1.0054, Florida

Administrative Code, defers to the "appropriate authority," in

this case FDLE-CJSTC, to determine if certification has been

maintained. Rule 60S-1.0054(2), Florida Administrative Code,

states that SRASC membership requires that the member must (a)

be employed by a unit whose primary purpose is corrections; and

(b) is employed or reassigned to a non-special risk position

which provides training and/or career development opportunities;

and (c) has participated in SRC; and (d) remains certified by

the appropriate authority; and (e) the member is subject to

reassignment to a special risk class at any time.

60. Due to Petitioner's SRC membership from 1974 to 1981,

he was eligible for SRASC on October 25, 1985, if he had

remained certified by the appropriate authority, and he only

needed to attain an additional three years in an SRC position at

some point prior to his retirement in order to attain the

required aggregate of ten years in SRC. If he had met all the

other requirements of Rule 60S-1.0054, Florida Administrative

Code, Petitioner would be entitled to SRASC for this period of

time. However, Rule 11B-27.0023, Florida Administrative Code,

and FDLE's correspondence in evidence reflect that a lapse of

less than four years was subject to some type of ministerial

correction of inactive status upon Petitioner's presentation of

proof of continued training, but once four years had passed, re-

training was required. Given Petitioner's absence from FDLE's

continued certification and training databases and the deference

owed FDLE's interpretation of its own rules, I must conclude

that Petitioner did not maintain his certification and was not

eligible for SRASC from October 25, 1985 to January 1, 1998,

despite occasionally having full charge of the correctional

facility during brief periods when the Director was out of town

between 1994 and 1998.

61. The foregoing Conclusions of Law cover all points

raised by the parties. A point that the parties have not

addressed is that Petitioner was eligible for SRASC

classification upon his first promotion on May 18, 1981. He had

already served seven years as a certified correctional officer

in SRC for a qualified employer. Respondent's SRASC rule only

contemplates that an aggregate of ten years (or for Petitioner,

three more years) of SRC be attained pre-retirement. Those

three years could be attained even now if Petitioner had

remained certified. As of May 18, 1981, Petitioner would have

been eligible for SRASC in his successive administrative support

positions from 1981 to 1998 so long as he met the other

requirements of the SRASC rule, to remain certified and to be

subject to reassignment at any time to a special risk position.

Respondent's SRASC rule contemplates certification continuing

even if the member is not in an SRC position, but Respondent's

SRASC rule defers to the "appropriate authority," in this case

FDLE-CJSTC, to determine whether the member remains certified.

Herein, FDLE determined, upon FDLE's own rules, that Petitioner

has not remained certified. I have not accepted FDLE's

pronouncement that Petitioner lost his certification by not

being " grandfathered-in," because it is an erroneous

interpretation of the 1981 statute. However, I accept FDLE's

rule and that agency's interpretation thereof to the effect that

certification has not remained intact for the reasons already

stated. I further conclude that SRASC entitlement from May 18,

1981, forward was not proven because there was no recommendation

by the employer specifying that Petitioner was subject to

special risk reassignment until 1986, and in 1987, Petitioner

applied for SRASC and his employer did not sign a statement that

he was subject to SRC reassignment nor recommend to Respondent

that Petitioner be assigned to SRASC.

62. Accordingly, by any construction, Respondent must

prevail herein on the merits.

The Attorney's Fees Issue

63. Petitioner has demonstrated no legal basis upon which

attorney's fees may be awarded in this cause, and none are

awarded.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is

RECOMMENDED that the Division of Retirement enter a Final

Order removing Petitioner from SRC and SRASC classification from

July 1, 1981 to October 24, 1985, and from October 25, 1985 to

January 1, 1998, respectively.

DONE AND ENTERED this 19th day of August, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of August, 1999.

ENDNOTE

1 / The undersigned could speculate that the April 23, 1986,

recommendation of Alachua County was somehow triggered by

Petitioner having been classified as SRC for ten years, the

number of years of aggregate SRC service specified in Section

121.0515(7), Florida Statutes, for SRASC eligibility, but there

is no clear evidence to that effect.

COPIES FURNISHED:

Bill Salmon, Esquire

Post Office Box 1095

Gainesville, Florida 32602

Emily Moore, Esquire

Division of Retirement

Cedars Executive Center

Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

A. J. McMullian, III, Director

Division of Retirement

Department of Management Services

Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

Paul A. Rowell, General Counsel

Department of Management Services

4050 Esplande Way

Tallahassee, Florida 32399-0950

Thomas D. McGurk, Secretary

Division of Retirement

4050 Esplanade Way

Tallahassee, Florida 32399-0950

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.