99-005348 Charles Burlingame And The City Of Panama City vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Tuesday, March 21, 2000.

Summary: Unless old and new job duties are identical after a position upgraded to senior management, prior regular service cannot be purchased for retirement purposes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES C. BURLINGAME and )

CITY OF PANAMA CITY, )

)

Petitioners, )

)

vs. ) Case No. 99-5348

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on February 28, 2000, in Panama City, Florida, before Donald R.

Alexander, the assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioners: Cecilia Redding Boyd, Esquire

Bryant & Higby, Chartered

Post Office Box 860

Panama City, Florida 32402-0860

For Respondent: Larry D. Scott, Esquire

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUE

The issue is whether Charles C. Burlingame's request to

purchase and upgrade prior regular service with the City of

Panama City under the Senior Management Service Class should be

approved.

PRELIMINARY STATEMENT

This matter began on November 4, 1999, when Respondent,

Department of Management Services, Division of Retirement, issued

a letter advising Petitioners, Charles C. Burlingame and City of

Panama City, that their request to upgrade prior service by

Charles C. Burlingame under the Senior Management Service Class

had been denied on the ground that the "duties of his [former]

position were different from the duties of [his] current

position." By Petition filed on November 30, 1999, Petitioners

requested a formal hearing under Section 120.569, Florida

Statutes, to contest the proposed action.

The matter was referred by Respondent to the Division of

Administrative Hearings on December 22, 1999, with a request that

an Administrative Law Judge be assigned to conduct a formal

hearing. By Notice of Hearing dated January 19, 2000, a final

hearing was scheduled on February 28, 2000, in Panama City,

Florida.

At the final hearing, Petitioners presented the testimony of

Frances H. Locke, City Employee Benefits Specialist, and Charles

C. Burlingame. Also, they offered Petitioners' Exhibits 1-5.

All exhibits were received in evidence. Respondent presented the

testimony of David W. Ragsdale, Benefits Administrator of

Enrollment. Also, it offered Respondent's Exhibits 1 and 2,

which were received in evidence.

There is no transcript of the hearing. Proposed Findings

of Fact and Conclusions of Law were filed by Petitioners and

Respondent on March 14 and 15, 2000, respectively, and they

have been considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. In this retirement dispute, Petitioner, Charles C.

Burlingame (Burlingame), seeks to have certain prior service with

Petitioner, City of Panama City (City), upgraded under the Senior

Management Service Class (SMSC) so that his retirement benefits

will vest at an earlier date. Respondent, Department of

Management Services, Division of Retirement (Division), has

denied the request on the ground that "the duties of

[Burlingame's former] position were different from the duties of

[his] current position," and that under these circumstances,

Section 121.055(1)(i), Florida Statutes (1997), required that the

request be denied.

2. Burlingame was first hired by the City on February 14,

1994, as Human Resources Director/Safety. As such, he was one of

approximately 16 City department directors. At that time,

Burlingame was enrolled in the "regular" class of the Florida

Retirement System (FRS).

3. In 1998, the Legislature authorized local governments

(as well as state agencies) who employed at least 200 individuals

to designate an additional employee under the SMSC. Because the

City employed that number of individuals, it was allowed to

designate another employee for SMSC. Burlingame was selected as

the employee, and he was promoted to a new position with the

title Assistant City Manager/Human Resources/Safety Director. At

the same time, his old position was abolished.

4. In conjunction with his promotion, Burlingame prepared a

job description for his new position. The old and new duties are

described in the documents attached to Respondent's Exhibit 2.

They reflect, at least on paper, that the functions and

illustrative duties of the two positions are not identical. For

example, in his new position, Burlingame is now in charge when

the City Manager is absent from the City. He also assists the

City Manager "in directing the overall operations of the City,"

as well as performing his former duties. According to

Burlingame, however, these new duties account for no more than

five percent of his total duties. The remainder coincide with

the duties performed under his old position.

5. Under the terms of the City's retirement system, the

retirement benefits for a SMSC employee vest after 7 years of

service, while a regular employee does not vest until after 10

years of service. Therefore, Burlingame wished to upgrade his

prior service between February 14, 1994, and September 29, 1998,

when he was changed to SMSC, since this would allow him to vest

in fewer years. It would also allow him to accumulate more

retirement points (2 per year) under the FRS for each year of

service than he would have earned as a regular employee (1.6 per

year).

6. When Burlingame was approved for membership in the SMSC

in October 1998, the City began processing an application with

the Division on his behalf for the purpose of determining the

"cost to upgrade past service to [SMSC] to 2-14-94." Because of

a large backlog of work caused by Deferred Retirement Option

Program applications, the Division was unable to act on

Burlingame's request until the early fall of 1999.

7. After the City made several inquiries concerning its

pending request, a Division Benefits Administrator, David W.

Ragsdale, wrote the City on September 15, 1999, and advised that

"[s]ince the position Mr. Burlingame filled as Human

Resources/Safety Director had different duties than the Assistant

Manager/Human Resources/Safety Director, he is ineligible to

upgrade because the position of Human Resources/Safety Director

no longer exists." This was followed by another letter on

November 4, 1999, which reconfirmed the earlier finding and

offered Petitioners a point of entry to contest the proposed

action. Petitioners then initiated this proceeding.

8. There is no rule or statute which provides that if the

job duties of a position upgraded from regular to SMSC do not

remain the same, prior regular service cannot be upgraded.

However, since the inception of the SMSC in 1987, the Division

has consistently ascribed that meaning to the words "within the

purview of the [SMSC]" in Section 121.055(1)(i), Florida Statutes

(1997), and Rule 60S-2.013(2), Florida Administrative Code.

Thus, if the new duties are "not within the purview" of the past

regular service class, that is, they are different in any

respect, the employee cannot purchase and upgrade the prior

service. This interpretation of the statute and rule was not

shown to be clearly erroneous or outside the range of possible

interpretations.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes

(1999).

10. As the parties seeking to purchase the prior service,

Petitioners bear the burden of proving by a preponderance of the

evidence that Burlingame is entitled to do so under the

controlling statute and regulation.

11. Section 121.055(1)(i), Florida Statutes (1997),

provides in part that

any member of the [SMSC] may purchase

additional retirement credit in such class

for creditable service within the purview of

the [SMSC] retroactive to February 1, 1987,

. . . This service credit may be purchased by

the employer on behalf of the member.

12. The Division has implemented the foregoing statute by

adopting Rule 60S-2.013(2), Florida Administrative Code, which

provides in part that a member of the SMSC "who has earned

creditable service within the purview of the [SMSC] may purchase

additional retirement credit in the [SMSC] for such service

retroactive to February 1, 1987."

13. Under the Division's interpretation of the foregoing

statute and rule, in order for prior regular service to be

"within the purview of the [SMSC]," the job duties under both FRS

plans must be the same. While this interpretation may not be the

most logical or fair, it was not shown to be clearly erroneous or

outside the range of possible interpretations. See , e.g. , Dep't

of Prof. Reg. v. Durrani , 455 So. 2d 515, 517 (Fla. 1st DCA

1984). Therefore, Petitioners' request must be denied.

14. Finally, at the hearing, the question was posed whether

such prior service could be upgraded if Burlingame's duties were

now amended by the City to be identical to those that he

performed while he was a regular class employee. While this

alternative appears to be facially viable, it is unnecessary to

reach that issue.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is

RECOMMENDED that the Department of Management Services,

Division of Retirement, enter a final order denying Petitioners'

request for an upgrade of Charles C. Burlingame's service under

the Senior Management Service Class.

DONE AND ENTERED this 21st day of March, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

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 21st day of March, 2000.

COPIES FURNISHED:

A. J. McMullian, III, Director

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

Emily Moore, Chief Legal Counsel

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

Cecilia Redding Boyd

Bryant & Higby, Chartered

Post Office Box 860

Panama City, Florida 32402-0860

Larry D. Scott, Esquire

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

Paul A. Rowell, General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

Thomas D. McGurk, Secretary

Department of Management Services

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.