99-004475 Fred O. Simons, Jr. vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Tuesday, August 1, 2000.

Summary: Petitioner failed to show a legal basis for earning retirement credits for Other Professional Services employment; not an "established position" and not paid from regular salary account.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRED O. SIMONS, JR., )

)

Petitioner, )

)

vs. ) Case No. 99-4475

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF RETIREMENT, )

)

Respondent. )

______________________________________)

RECOMMENDED ORDER

This cause came on for formal proceeding before P. Michael

Ruff, Administrative Law Judge of the Division of Administrative

Hearings. Pursuant to notice a Final Hearing was conducted on

May 10, 2000, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Fred O. Simons, Jr., pro se

9138 McDougal Court

Tallahassee, Florida 32312

For Respondent: Emily Moore, Esquire

Division of Retirement

2639 North Monroe Street

Building D, Suite 230

Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns

whether the Petitioner, Fred O. Simons, Jr., is entitled to

retirement service credit in the Florida Retirement System (FRS)

for employment with the State University System of Florida (SUS)

at the Florida Agricultural and Mechanical University-Florida

State University College of Engineering (FAMU-FSU) for the

summer sessions of 1994, which are alleged by the Respondent to

be Other Professional Service (OPS) employment.

PRELIMINARY STATEMENT

The Petitioner was employed for the Summer Term of 1994

with the FAMU-FSU College of Engineering and paid by FAMU by OPS

compensation. He requested that that OPS compensation for the

Summer Term of 1994 be included as "creditable service" under

the FRS, contending in essence that he was in an established

position, was mistakenly paid as an OPS employee and should have

been paid from a regular salary account and therefore be

entitled to creditable service for the employment period and

compensation earned for that Summer Term of 1994. After it

communicated with FAMU, the SUS and the Department of Management

Services (DMS), office of the Inspector General, in an effort to

clarify its understanding of the Petitioner's employment

relationship during that Summer Term, the Division of Retirement

(Division) concluded it had no legal authority to grant the

Petitioner's request. Consequently a final agency action letter

was issued July 15, 1999, in which the Division denied his

request.

The Petitioner filed a timely request for an administrative

proceeding and hearing due to that denial and requested that the

case be abated for 90 days. The Division granted the request

and placed the case in abeyance. Subsequently, on October 22,

1999, it was referred to the Division of Administrative Hearings

for conduct of a formal proceeding and rendition of a

recommended order in resolution of the dispute.

The cause came on for hearing as noticed. The Petitioner

represented himself and was also allowed to testify in his own

behalf. He also called as witnesses, Colonel Robert L. Rollins

of FAMU, Vice President of Academic Affairs, Office of the

Provost; Allen Reams, Chief, Bureau of Accounting and State

Payrolls of the Office of the Comptroller, Department of Banking

and Finance; Maurice Helms, Chief, Bureau of Calculations, DMS;

and the video-taped testimony of Dr. Allen George, Professor of

Engineering, University of Florida, a former employee of the

FSU-FAMU College of Engineering. The Petitioner's Exhibits A

through R were admitted into evidence.

The Respondent presented the testimony of Larry Hunnicutt,

the Benefits Administrator, Bureau of Retirement Calculations

and the testimony of Harry Hooper, General Counsel, Office of

the Comptroller, Department of Banking and Finance. The

Respondent offered Exhibits 1 through 20, which were also

admitted into evidence. Identical motions for official

recognition of relevant statutes and rules were filed by both

parties and were granted. Additionally, the Petitioner had

served a subpoena on May 8, 2000, on A. J. McMullian, III, State

Retirement Director and Agency Head designee. A Motion for

Protective Order to preclude Mr. McMullian from testifying was

filed and was argued at hearing. The Motion was granted.

Subsequent to the hearing the parties submitted timely Proposed

Recommended Orders which have been considered in the rendition

of this Recommended Order.

FINDINGS OF FACT

1. Fred O. Simons, Jr., the Petitioner, is a tenured

Professor in the SUS of Florida. He serves at the FAMU-FSU

College of Engineering and has been compensated at times

relevant hereto for a complete "full-time equivalency" (FTE) by

FSU for a nine-month academic year. He has been compensated by

FAMU for summer terms when he has worked. He has more than 30

years of creditable service in the FRS and in July 1999, he

retired from the FRS by entering the Deferred Retirement Option

Program (DROP).

2. When he made his application for entry into the DROP

program the Petitioner requested inclusion of his Summer 1994

OPS service in the calculation of his monthly earned retirement

benefits. He was advised by the Respondent agency that it could

not be included in the calculation of his monthly earned

retirement benefits because he was not in an "established

position" for the Summer Term of 1994 and he was paid for that

term from OPS funds rather than from a regular salary

appropriation. The Petitioner worked during the 1993 Summer

Term for FAMU and verbally agreed that that employment be as an

OPS employee. He neither signed an OPS contract for the 1993

Summer Term nor was he actually paid from OPS funds for the

Summer Term of 1993. He contends that FAMU apparently acted

upon his Summer 1993 agreement and issued a written OPS contract

for the 1994 Summer Term, which he executed. Indeed he signed

several OPS appointment forms and employment contracts for the

entire summer term of 1994. He states that he did not recall

reading any of those OPS contracts which he signed for the

Summer of 1994 but merely signed them as they were presented.

He contends that his signing of the OPS appointments and

contracts and FAMU's offer of OPS appointments for the Summer

Term of 1994 was in error and was contrary to direction from the

SUS and/or the Chancellor for the SUS.

3. The Petitioner's signature is affixed to four separate

FAMU OPS appointment forms, as well as to FAMU contracts for

less than one academic year. See Petitioner's Exhibit E and

Respondent's Exhibits 20 and 19 in evidence. Each Summer Term

1994 employment contract, both before and after attempted

revision, covered appointments for less than one academic year

and provided:

"your employment hereunder will cease on the

dates indicated." The Petitioner's Summer

Term of 1994 contract provided that the

appointment status was "adjunct" and/or that

"this appointment offer is contingent [sic]

your assigned class (ES) materializing."

4. The Chancellor's July 12, 1995, memorandum: CM77-47.2,

effective July 1, 1995, provides, in relevant part:

". . . compensation for appointments up to

and including 1.0 FTE shall be paid from

salary and those in excess of 1.0 FTE shall

be paid from other personnel services (OPS)

funds."

5. FAMU interpreted the July 12, 1995 Chancellor's

Memorandum to include its appointment of tenured professors to

OPS employment contracts, effective July 1, 1995, but not before

that date.

6. Roberta Maddox, Associate Vice Chancellor, Office of

Human Resources of the SUS sent a letter dated May 17, 1999, to

the Petitioner advising him that his ". . . OPS appointment

contract . . . clearly states the following:

OPS employees are not eligible for benefits

such as free course waivers, paid vacation,

sick leave and holidays, participation in

group insurance, or retirement ." (emphasis

supplied).

7. The May 17, 1999, SUS letter further advised the

Petitioner that ". . . there appears to be no authorized remedy

for your situation. As such, the earnings from your Summer 1994

employment with Florida A & M University were correctly

recognized as not compensable earnings."

8. James Ammons, the FAMU provost, acknowledged in a

Memorandum dated June 22, 1999, that "we were not able to revise

his [Petitioner's] C&G contract . . . [S] ince he was fully paid

from his C&G account as an OPS employee . . ."

9. FAMU president Frederick Humphries, by letter dated

October 28, 1999, asked the Division of Retirement "if

possible," to grant retirement services credit for the

Petitioner's Summer 1994 employment.

10. The Office of the Comptroller has never followed a

policy or interpretation, in construing the relevant provisions

of Chapter 216, Florida Statutes, and Rule Chapter 60S-1,

Florida Administrative Code, of transferring retirement

contributions from an employer to FRS for an employee's OPS

employment. Chapter 121, Florida Statutes, the FRS law, does

not authorize retirement service credit for OPS services. The

Office of the Comptroller neither credits nor actually transfers

contributions from employers to the FRS attributable to periods

of OPS employment.

11. The Office of the Comptroller also does not

retroactively remove employees from OPS appointments and place

them in salaried positions in order to make them eligible for

retirement service credit. The Division office of the Inspector

General, by letter dated June 23, 1999, advised the Petitioner

". . . [B] ased on my review, I find that the Division of

Retirement was correct . . . apparently, you were placed in this

position when Florida A & M signed you to an OPS contract for

the Summer of 1994. The Division of Retirement has no authority

to undo this action . . . we are statutorily unable to provide

you the relief you request."

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. Subsection 120.57(1), Florida Statutes (1999).

13. The Petitioner has the burden of proof in this

proceeding. See Young v. State Department of Community Affairs ,

625 So. 2nd 831 (Fla. 1993). The Petitioner must demonstrate by

a preponderance of evidence that he is entitled to the agency

action he requested. See St. Johns River Water Management

District v. Consolidated Tomoka Land Company , 717 So. 2nd 72

(Fla. 1st DCA 1998), re-hearing denied , 727 So. 2nd 904 (Fla.

1999); Agrico Chemical Company v. State Department of

Environmental Regulation , 365 So. 2nd 759 (Fla. 1st DCA 1978).

The Petitioner has not met his burden.

14. Although the Petitioner is a tenured Professor, with

more than 30 years of service in the FRS, FAMU was not precluded

by law or policy from extending to him an OPS employment

appointment prior to July 1, 1995. Even if FAMU has erred in

the application of its policy, in appointing the Petitioner to

OPS employment, the Petitioner's claim, based on the Summer Term

1994 error is barred by the passage of time. Subsection

110.1165(3), Florida Statutes, provides that such a claim must

be raised within 2 years of the error.

15. The Petitioner signed several FAMU OPS employment

contracts and appointment forms for the Summer Term 1994 and was

fully paid for his services pursuant to those contracts.

Retirement service credit was expressly excluded from that

compensation.

16. The Petitioner's service during the Summer Term of

1994 was temporary employment. He was not in an authorized or

"regularly established position." See Subsections 216.001(1)(d)

and (k), Florida Statutes, and Subsection 216.262(1)(a), Florida

Statutes. See also Rule 60S-1.004(4)(a) and (5), Florida

Administrative Code.

17. Both the legal authority cited and the FAMU OPS

appointment forms established that the Petitioner is not

entitled to retirement service credit for OPS services rendered

during the Summer Term of 1994. He was neither filling an

established position nor was he paid from salary appropriations

during this period. Rather he was paid from OPS funds.

Moreover, he was on written notice that he was in an OPS

employment mode and that retirement service credit did not

apply. His testimony reveals that he would have known he was on

such notice had he read the OPS appointment forms and/or

contracts. See Subsection 216.011(1)(z), Florida Statutes.

18. Neither FAMU, the SUS nor the Comptroller's office was

able to determine a legally-authorized means whereby the

Petitioner could be retroactively removed from his OPS

employment status for the Summer Term of 1994 and retroactively

placed in a salaried position, so that he could be afforded

retirement service credit for the Summer Term 1994 employment

period.

19. In summary, the Division of Retirement has no legal

authority in the Statute or Rules applicable to grant the relief

requested by the Petitioner. The preponderance of the evidence

establishes, in conjunction with the legal authority apropos of

the facts established by the preponderant evidence, that the

Petitioner's claim should be denied.

RECOMMENDATION

Accordingly, having considered the foregoing Findings of

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

demeanor of the witnesses, and the pleadings and arguments of

the parties it is, therefore,

Recommended that a final order be entered by the Department

of Management Services, Division of Retirement holding that the

Petitioner's request for retirement service credit for his

Summer Term 1994 OPS employment, and his Petition, should be

denied.

DONE AND ENTERED this 1st day of August, 2000, in

Tallahassee, Leon County, Florida.

P. MICHAEL RUFF

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 1st day of August, 2000.

COPIES FURNISHED:

Bruce Hoffman, General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

Ron Poppell, Interim Director

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

Fred O. Simons, Jr.

9138 McDougal Court

Tallahassee, Florida 32312

Emily Moore, Esquire

Chief Legal Counsel

Division of Retirement

2639 North Monroe Street

Building D, Suite 230

Tallahassee, Florida 32399-1560

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.