03-004024 Carolyn Johnson-Rollins vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Tuesday, January 13, 2004.

Summary: Petitioner is not entitled to benefits under the Florida Retirement System because she has less than 6 years of creditable service.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROLYN JOHNSON - ROLLINS, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4024

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on December 22,

2003, in Gainesville, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Carolyn Johnso n - Rollins

Apartment N118

2701 Northwest 23rd Boulevard

Gainesville, Florida 32605

For Respondent: Robert R. Button, Esquire

Department of Management Services

Division of Retirement

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

The issues are whether Petitioner's employment as a

substitute teacher is creditable ser vice under the Florida

Retirement System, entitling her to retirement benefits and

whether she may purchase retirement credit for out - of - state and

federal service prior to vesting.

PRELIMINARY STATEMENT

By letter dated August 19, 2003, Respondent Departme nt of

Management Services, Division of Retirement (Respondent) advised

Petitioner Carolyn Johnson - Rollins (Petitioner) that she was

ineligible for benefits under the Florida Retirement System.

Petitioner subsequently requested an administrative hearing to

challenge Respondent's decision.

In a Notice of Hearing dated November 6, 2003, the

undersigned scheduled the hearing for December 22, 2003. During

the hearing, Petitioner testified on her own behalf and offered

nine exhibits that were accepted into t he record as evidence.

Respondent did not present any witnesses but offered the

deposition of Doug Cherry, with attached exhibits, which was

accepted as testimony in lieu of live testimony at hearing.

The parties did not file a copy of the hearing tran script.

Respondent filed a Proposed Recommended Order on December 30,

2003. Petitioner has not made a post - hearing submission as of

the date of issuance of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, aged 53, applied for retirement benefits

from the Florida Retirement System (FRS) on October 20, 2003.

2. Petitioner has 4.53 years of creditable service with

the FRS due to her employment as a full - time teacher with the

Alachua County School Board (School Board). She worked for the

School Board from sometime in the early 1970s through May 1977.

3. In May 1977, Petitioner terminated her employment with

the School Board. She then joined the military, serving four

years of active duty.

4. After completing her military service in 1981,

P etitioner worked out of state as a civil service employee with

the Federal government. She also worked for a period of time in

the private sector.

5. In the 1990s, Petitioner returned to Alachua County,

Florida. She worked as a substitute teacher for th e School

Board for approximately four years, from November 21, 1999

through February 14, 2002.

6. Before beginning her employment as a substitute

teacher/temporary employee in 1999, Petitioner signed a document

entitled "Acknowledgement of FRS Status an d Alternative Plan."

This document clearly advised Petitioner that her employment as

a substitute teacher was not covered under FRS.

7. Petitioner was not employed by a participating employer

in a regularly established position on July 1, 2001. She ne eds

an additional 1.47 years of credible service in order to vest in

FRS with six years of credible service.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursua nt to Sections 120.569 and 120.57(1), Florida

Statutes (2003).

9. Petitioner has the burden of proving by a preponderance

of the evidence that she is entitled to benefits under FRS.

Department of Transportation v. J.W.C. Co. Inc. , 396 So. 2d 778

(Fla. 1s t DCA 1981); Agrico Chemical Co. v. Department of

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

10. Section 121.021(45), Florida Statutes (2003), provides

as follows in pertinent part:

(45)(a) "Vested" or "vesting" means the

guarantee that a member is eligible to

receive a future retirement benefit upon

completion of the required years of

creditable service for the employee's class

of membership, even though the member may

have terminated covered employment before

reaching normal or ea rly retirement date.

Being vested does not entitle a member to a

disability benefit. Provisions governing

entitlement to disability benefits are set

forth under Section 121.091(4).

(b) Effective July 1, 2001, a 6 - year

vesting requirement shall be imple mented for

the defined benefit program of the Florida

Retirement System. Pursuant thereto:

* * *

2. Any member not employed in a regularly

established position on July 1, 2001, shall

be deemed vested upon completion of 6 years

of creditable service, p rovided that such

member is employed in a covered position for

at least 1 work year after July 1, 2001.

However, no member shall be required to

complete more years of creditable service

than would have been required for that

member to vest under retiremen t laws in

effect before July 1, 2001.

11. Section 121.1115, Florida Statutes, provides as

follows in relevant part:

121.1115 Purchase of retirement credit for

out - of - state and federal service. -- Effective

January 1, 1995, a member of the Florida

Retir ement System may purchase creditable

service for period of public employment in

another state and receive creditable service

for such periods of employment. Service

with the Federal government, including any

military service, may be claimed. Upon

complet ion of each year of service earned

under the Florida Retirement System, a

member may purchase up to one year of

retirement credit for his or her

out - of - state service subject to the

following provisions:

(1) LIMITATIONS AND CONDITIONS. -- To receive

cred it for the out - of - state service:

* * *

(b) The member must have completed a

minimum of 6 years of creditable service

under the Florida Retirement System,

excluding out - of - state service and in - state

service claimed and purchased under

section 121.1122 .

12. Florida Administrative Code Rule 60S - 1.004(5) provides

as follows in relevant part:

(5) An employee who is filling a temporary

position shall not be eligible for

membership in the Florida Retirement System.

. . . An employer employing a perso n in a

temporary position shall advise the employee

at the time of his employment that he is

filling a temporary position and cannot

participate in the Florida Retirement System

or claim this temporary employment later for

retirement purposes.

* * *

(b ) A temporary position in a local agency

is:

* * *

2. An employment position which is listed

below in (d) regardless of whether it will

exist beyond 6 consecutive months.

* * *

(d) The following types of positions in a

local agency are considered temporary

positions for retirement purposes. . . .

* * *

4. Substitute Teacher Positions (positions

filled by persons not on contract called to

work intermittently to substitute.)

13. In this case, Petitioner has not met her burden. She

has 4.53 ye ars of creditable service in the FRS. She needs to

work in a covered position for an additional 1.47 years in order

to vest in FRS with six years of creditable. Only then will she

be eligible to purchase her out - of - state and/or military

service.

RECOMM ENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Respondent enter a final order finding that Petitioner

is not entitled to FRS benefits.

DONE AND ENTERED this 13th day of January, 2004, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (85 0) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of January, 2004.

COPIES FURNISHED :

Robert R. Button, Esquire

Department of Management Services

Division of Retirement

4050 Esplanade Way, Su ite 260

Tallahassee, Florida 32399

Carolyn Johnson - Rollins

Apartment N118

2701 Northwest 23rd Boulevard

Gainesville, Florida 32605

Sarabeth Snuggs, Interim Director

Division of Retirement

Department of Management Services

Cedars Executive Center, Buildi ng C

2639 North Monroe Street

Tallahassee, Florida 32399 - 1560

Alberto Dominguez, General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399 - 1560

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to s ubmit 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.