04-003058 Wesley Petty vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Tuesday, November 30, 2004.

Summary: Petitioner was excluded from Florida Retirement System credit for a nine-month period because the position he held was not regularly established so as to entitle him to state retirement benefits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WESLEY PETTY, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3058

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RECOM MENDED ORDER

This cause came on for formal hearing before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on October 12, 2004, in Cross City,

Florida.

APPEARANCES

For Petitioner: Joseph Lander, Esquire

Lander & Lander, Attorneys at Law

Post Office Box 2007

Cross City, Florida 32628

For Respondent: Spencer Kraemer, Assistant General Counsel

Department of Management Services

Office of the General Counsel

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

The issue is whether the Department of Management Services,

Division o f Retirement, correctly excluded Petitioner from

participation in the Florida Retirement System from August 18,

1995, through November 17, 1996.

PRELIMINARY STATEMENT

Mr. Wesley Petty began working for Dixie County on

August 18, 1995. In January of 1998, Dixie County first

reported Mr. Petty for retirement purposes. Because the county

reported Mr. Petty but had not enrolled him in the retirement

system, the Division of Retirement ("Division") investigated to

determine whether Mr. Petty was filling an est ablished position

and was, therefore, eligible for membership. Subsequent to its

review of available information, the Division determined that

Mr. Petty was eligible for retirement service credit beginning

November 18, 1996. The Division denied Mr. Petty service credit

from August 18, 1995, through November 17, 1996. According to

the Division's Final Agency Action letter, Mr. Petty was

determined to be an "on - call" or "temporary" employee with Dixie

County from August 18, 1995 through November 17, 1996, and,

therefore, he was correctly excluded from the Florida Retirement

System (FRS) for that time period.

At the hearing, Petitioner presented the testimony of

Howard Reid, Joseph Ruth, and Arthur Bellot and offered no

exhibits into evidence. Petitioner fa iled to appear at the

final hearing. Respondent presented the testimony of Cathy

Smith and Monica Jones and offered Exhibit Nos. 1 through 7 into

evidence.

A Transcript was filed on October 27, 2004. Also on

October 27, 2004, Respondent filed a Motion to Reopen the Record

and Motion Offering New Evidence for the Record, which was

granted after Petitioner filed no response, thereby adding

Respondent's Exhibit No. 8 to the record. After the hearing,

Respondent filed Proposed Findings of Fact and Conclusi ons of

Law on November 16, 2004. Petitioner did not file a proposed

recommended order.

References to statutes are to Florida Statutes (2004)

unless otherwise noted.

FINDINGS OF FACT

1. Petitioner was hired by Dixie County on August 18,

1995, to work the roll - off site in Jena, Dixie County, Florida.

2. At the time of his hiring, Petitioner's position was

described as "Temporary Roll - Off Site Fill In."

3. A roll - off site is where people take their garbage

which is then transferred to the main facil ity for disposal.

4. A "Temporary Roll - Off Site Fill In" is defined as

someone who is called to work as needed.

5. According to the Dixie County Payroll Records,

Petitioner was employed as a "Temporary Roll - Off Site Fill In"

from August 19, 1995, unt il November 18, 1996, when he became a

"Part - Time Fill In Roll - Off" with an 80 - hour biweekly schedule,

until a permanent position could be filled.

6. In July 1998, Petitioner's position became classified

as permanent and his position description was chan ged to "Full

Time Roll - Off Site."

7. Testimony from Howard Reid, the road superintendent who

was Petitioner's supervisor at the Jena roll - off site during the

time period of August 18, 1995, to November 17, 1996, was that

Petitioner was employed to fill t he full - time position of

Houston O. ("Hugh") Markham who had been fired from his

employment with Dixie County in August 1995. Mr. Reid testified

that Petitioner was employed in a regularly established position

during this time period.

8. No documentatio n was produced to substantiate the claim

that Petitioner worked in a regularly established position from

August 18, 1995, to November 17, 1996.

9. Respondent's records show that Houston O. Markham was

employed by Dixie County during the period of August 18, 1995,

to November 17, 1996.

10. Houston Markham was paid by Dixie County until

December 1, 1996.

11. December 1, 1996 is the pay date for the period

beginning November 18, 1996.

12. Based upon the payroll records, Petitioner began

working 80 hour s, biweekly, on November 18, 1996. This date

coincides with Respondent's records for the last pay date of

Houston Markham.

13. The only time records in evidence for Petitioner are

for the time period of November 3, 1996, to July 26, 1998. For

the pay d ate of November 3, 1996, Petitioner was paid for 42

hours of work. For the pay date of November 17, 1996,

Petitioner was paid for 53 hours of work. Thereafter, for the

next 43 pay periods, Petitioner was paid for 80 hours of work

biweekly (with one excep tion, the pay date of July 13, 1997, for

which he was paid 76 hours).

14. Petitioner's other witnesses, Joseph Ruth and Arthur

Bellot, were not in a supervisory position over Petitioner from

August 18, 1995, to November 17, 1996, and could not attest to

Petitioner's employment during that time.

15. Membership in the Florida Retirement System is

compulsory for any person who fills a regularly established

position, as defined by statute.

16. A person filling a temporary position, as defined by

statute, is not eligible to participate in the FRS. The agency

would not report the temporary employee's work to Respondent.

17. The first time Dixie County ever reported Petitioner

for retirement purposes was in January 1998.

18. After review, Respondent fo und that Petitioner was

eligible to participate in the FRS effective November 18, 1996,

based upon a Payroll Change Notice from Dixie County.

19. The number of hours a state employee works is not

dispositive of the issue of whether he or she is an employ ee in

a regularly established position. An employee who works only

two days a week, for example, would be a participant in the FRS

if employed in a regularly established position.

20. Based upon the documentation in its possession,

Respondent enrolled P etitioner in the FRS effective November 18,

1996.

21. Respondent requested that Petitioner submit tax

documentation to demonstrate that he had worked full - time for

Dixie County during the August 18, 1995, to November 17, 1996,

period, as he claimed.

22. Respondent submitted no documentation to support his

claim to have been either a full - time employee or an employee in

a regularly established position.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the subject mat ter of and the parties to this

proceeding. § 120.57(1), Fla. Stat.

24. Chapter 121, Florida Statutes (2004), is the Florida

Retirement System Act. Section 121.051, Florida Statutes,

provides for compulsory participation in the FRS for all

employees hi red after December 1, 1970. Section 121.021(11),

Florida Statutes, defines an officer or employee as "any person

receiving salary payments for work performed in a regularly

established position and, if employed by a city or special

district, employed in a covered group."

25. A "regularly established position" is defined in

Section 121.021(52)(b), Florida Statutes, as follows:

In a local agency (district school board,

county agency, community college, city, or

special district), the term means a

regularly established position which will be

in existence for a period beyond 6

consecutive months, except as provided by

rule.

26. Florida Administrative Code Rule 60S - 1.004(5),

provides, in pertinent part, the following:

An employee who is filling a temporary

position shall not be eligible for

membership in the Florida Retirement System.

. . . A position meeting the definition

below shall be a temporary position.

* * *

(d) The following types of positions in a

local agency are considered temporary

positions for retirement purposes.

* * *

5. On call positions (positions filled by

employees who are called to work

unexpectedly for brief periods and whose

employment ceases when the purposes for

being called is satisfied).

27. Section 121.021(45)(a), Florida Statutes, defines

"vested" or "vesting," in pertinent part, as follows:

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 early retirement date.

The vesting requirement that applies to Petitioner pursuant to

Section 121.021, Florida Statutes, is six years of creditable

service.

28. Petition er has the burden of proving by a

preponderance of the evidence that he is entitled to retirement

service credit for August 18, 1995, to November 17, 1996.

Sections 120.57(1)(j) and (k), Florida Statutes; Florida

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

1st DCA 1981); Balino v. Department of Health and Rehabilitative

Services , 348 So. 2d 349 (Fla. 1st DCA 1977); and Young v.

Department of Community Affairs , 625 So. 2d 831 (Fla. 1993).

29. In 1998 Dixie County provided sufficient do cumentation

to Respondent to support the fact that Petitioner filled a

temporary on - call position at the Jena roll - out site from

August 18, 1995, through November 17, 1996.

30. At hearing, Petitioner presented testimony from Howard

Reid, Petitioner's f ormer supervisor, to demonstrate that

Petitioner was employed as the sole employee at the Jena roll -

out site from August 18, 1995, to November 17, 1996, once

Houston Markham had been terminated from the position.

Respondent's official records, however, nu llify this testimony

since they clearly demonstrate that Mr. Markham was paid a

significant amount during the period when Petitioner was alleged

to be the sole employee at the Jena roll - out site. Based upon

Respondent's official records, which were admitt ed into the

record uncontroverted by Petitioner, Mr. Markham was not

terminated from his employment to make room for Petitioner.

31. Based upon the evidence presented, Petitioner worked

in an on - call position with Dixie County from August 18, 1995,

throu gh November 17, 1996. Based upon the statutory and rule

definitions, from August 18, 1995, through November 17, 1996,

Petitioner worked in a temporary position for the purpose of

determining eligibility for service credit in the FRS.

32. Petitioner, as a person filling a temporary position,

as defined by Florida Administrative Code Rule 60S - 1.004(5), is

not eligible for service credit in the FRS. Therefore, the only

time worked by Petitioner that is eligible for service credit

runs from November 18, 199 6, through September 30, 2002.

Accordingly, since Petitioner completed less than 6 or more

years of creditable service at the time he retired (and attained

age 62), he is not entitled to retirement benefits from the FRS

as of the date of the hearing.

R ECOMMENDATION

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

is,

RECOMMENDED that the Division of Retirement enter a Final

Order denying Petitioner's request for participation in the

Florida Retirement System for the period of August 18, 199 5,

through November 17, 1996.

DONE AND ENTERED this 30th day of November, 2004, in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahasse e, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of November, 2004.

COPIES FURNISHED :

Spencer Kraemer, Assistant Genera l Counsel

Department of Management Services

Office of the General Counsel

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399 - 0950

Joseph Lander, Esquire

Lander & Lander, Attorneys at Law

Post Office Box 2007

Cross City, Florida 32628

Sarabeth Snu ggs, Director

Division of Retirement

Department of Management Services

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399 - 0950

Alberto Dominguez, General Counsel

Department of Management Services

4050 Esplanade Way

Ta llahassee, 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.