04-003263 Richard P. Balezentis vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Wednesday, March 2, 2005.

Summary: Petitioner failed to show he was "covered" by the Maryland retirement system for 2 months during his tenure with the Maryland school system. He could have paid for 2 months` credit, but did not do so and cannot be accorded 2 months of Florida retirement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD P. BALEZENTIS, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3263

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondents )

)

RECOMMENDED ORDER

In accordance with notice, this cause came on for formal

hearing in Jacksonville, Florida, on December 13, 2004, before

P. Michael Ruff, Administrative Law Judge.

APPEARANCES

For Petitioner: Richard P. Balezentis, pro se

1126 Ward Place

Jacksonville, Florida 32259

For Respondent: Robert B. Button, Esquire

Department of Management Services

Division of Retirement

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399 - 9000

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns

whether the Petitioner is eligible to purchase out - of - state

creditable service under the Flor ida Retirement System (FRS),

for employment in September and October 1973, with the Maryland

State Teachers Retirement System (MSTRS), in accordance with

Section 121.1115, Florida Statutes.

PRELIMINARY STATEMENT

This cause arose upon the issuance of a f inal agency action

letter on June 4, 2004, by the Respondent, Department of

Management Services, Division of Retirement (Division) in which

it denied the Petitioner's request to be credited with two

months of out - of - state services as a teacher with the Har ford

County Public Schools in Maryland. The Petitioner petitioned

for a formal proceeding based upon that denial and the cause was

ultimately transferred to the undersigned administrative law

judge for hearing.

The cause came on for hearing in Jacksonvill e, Florida, on

December 13, 2004. The Petitioner testified on his own behalf

and Joint Exhibits 1 - 5, consisting of official records of the

Department of Management Services, as well as correspondence

from the MSTRS, were submitted into evidence. Addition ally, the

Respondent adduced the testimony of Douglas Cherry, the benefits

administrator, testifying on behalf of the Division. Upon

conclusion of the hearing, the parties requested a transcript

thereof, which was filed, and submitted P roposed R ecommended

O rders, which were due on February 22, 2005. The Proposed

Recommended Orders were timely filed and have been considered in

the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner, Richard P. Balezentis, is a vested

member of the Florida Retirement System. He has a total of

29.80 years of creditable service as of August 1, 2004,

according to the FRS. That creditable service includes 4.8

years of creditable out - of - state past service with the Maryland

State Teachers Retirement System. The Petitioner is seeking to

add .20 years of creditable service (2 months) representing

employment under the MSTRS for the months of September and

October 1973. It is undisputed that the Petitioner became

employed by the Harford County Public Sc hool System on

August 28, 1973. The evidence shows that he was not actually

enrolled in the MSTRS however, until November 1, 1973. The

reason for the two - month gap in his enrollment in the retirement

system, when he was clearly employed and in an eligibl e position

with the Harford County Public School System is unknown at this

time. The Petitioner was not required to pay retirement

contributions, and contributions on his behalf were not made for

those two months, however.

2. If the Petitioner receives .2 years creditable service

for employment under the MSTRS for the months of September and

October 1973, he would have 30 years of service established as

of August 1, 2004, which would become his "normal retirement

date." Therefore, he would be able to co mmence participating in

the deferred retirement option plan (DROP) effective that date.

3. The Division determined, however, that Mr. Balezentis

was ineligible to receive retirement credit for his employment

with the MSTRS in Harford County Maryland Pu blic Schools for the

months of September and October 1973. Therefore, his "normal

retirement date" when he may begin participating in DROP is

October 1, 2004, according to the Division's position.

4. The Division determined that October 1, 2004, shoul d be

his "normal retirement date" because, although employed as a

teacher for the Maryland School System involved (since

August 28, 1973), he was not a participating member of the MSTRS

during the two months in question. His enrollment and

participation i n the MSTRS did not begin until November 1, 1973.

The Petitioner could have purchased credit for the months of

September and October 1973 under the MSTRS, during his

employment in Maryland with the Harford County School System but

he failed to do so. Alt hough the Petitioner's failure to be

recorded as a member of the MSTRS for the two months in question

may have been a clerical error of the MSTRS or his Maryland

employer, the Petitioner had an opportunity to cure the error by

purchase of credit for those two months before he left the MSTRS

retirement plan but he failed to do so. See letter of Audrey

Simpson, supervisor of benefits of the MSTRS, in evidence as

Respondent Exhibit 5.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

jurisdi ction of the subject matter of and the parties to this

proceeding. §§ 120.57(1), and 120.569, Fla. Stat.

6. The Petitioner seeks to change the status quo, and thus

bears the burden of providing eligibility to purchase his out -

of - state service for the mon ths of September and October 1973.

See Young v. Department of Community Affairs , 625 So. 2d 837

(Fla. 1993); Department of Transportation v. J.W.C. , 396 So. 2d

778 (Fla. 1st DCA 1981).

7. Section 121.1115, Florida Statutes, provides in

pertinent part:

12 1.1115 Purchase of retirement credit for

out - of - state and federal service. --

Effective January 1, 1995, a member of the

Florida Retirement System may purchase

creditable service for periods of public

employment in another state and receive

creditable serv ice for such periods of

employment . . . . Upon completion of each

year of service earned under the Florida

Retirement System, a member may purchase up

to 1 year of retirement credit for his or

her out - of - state service, subject to the

following provision:

(1) LIMITATIONS AND CONDITIONS. -- To receive

credit for the out - of - state service:

(a) The out - of - state service being claimed

must have been:

1. Performed in a position of employment

with the state or a political subdivision

thereof or with the Federa l Government;

2. Covered by a retirement or pension plan

by the state or political subdivision , or by

the Federal Government, as appropriate; and

3. Performed prior to a period of

membership in the Florida Retirement System.

[emphasis supplied]

* * *

8. The unrefuted evidence and the above legal authority

establishes that the Petitioner did not possess retirement

coverage under the MSTRS for the months of September and October

1973. He could have obtained that coverage by purchasing those

two m onths while he was employed in an entity covered by the

MSTRS, but he failed to do so. Because he did not have covered

service with the MSTRS for those two months, under the above

legal authority, he is ineligible to purchase the two months of

service und er the FRS.

9. The Petitioner contends that the Division should be

equitably estopped from denying his eligibility to purchase the

two months of uncovered service with the MSTRS. Even if the

failure of his coverage for those two months with the MSTRS w as

due to a clerical error by the Maryland employer, the school

system, or by the MSTRS itself, the FRS cannot be assigned error

by the actions of another party. The Petitioner did not show

any conduct on the part of the Division that would give rise to

a n equitable estoppel. See Council Brothers, Inc. v. City of

Tallahassee , 634 So. 2d 264 (Fla. 1st DCA 1994). The Petitioner

did not show that representations were made by any employee of

the Division or by any Florida employer to the effect that he

was e ntitled to credit for those two months of service without

having purchased credit for them while employed under the MSTRS.

The Division cannot perform a service or accord credit to a

member of the FRS which by law it is not authorized to do.

Further, the Petitioner failed to purchase MSTRS retirement

service credit or to make any member contributions for the two

months at issue when he was a member of the MSTRS. The above

statutory provision clearly establishes that if he was not

"covered" by the out - of - state retirement plan then he cannot

purchase credit for it or be accorded credit for it by the FRS.

10. The Division's construction and application of the

provisions of Chapter 121, Florida Statutes, are entitled to

great weight and will be followed by courts unless clearly

erroneous or amounting to an abuse of discretion. See

Okeechobee Health Care v. Collins , 726 So. 2d 775 (Fla. 1st DCA

1998). The Division is not authorized to depart from the

requirements of its organic statute when it exercises it s

jurisdiction. It has properly denied the request of the member

who is ineligible to now purchase out - of - state service credit

because he was not a covered member of the out - of - state

retirement system for the period of time in question, and did

not purcha se that credit while still covered by the MSTRS. The

statute does not authorize departure from that procedure and

position.

RECOMMENDATION

Having considered the foregoing F indings of F act,

C onclusions of L aw, 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, denying the

Petitioner's request to purchase out - of - st ate service credit for

the months of September and October 1973.

DONE AND ENTERED this 2nd day of March, 2005, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative He arings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, 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 2nd day of March, 2005.

COPIES FURNISHED :

Richard P. Balezentis

1126 Ward Place

Jacksonville, Florida 32259

Richard B. Button, Esquire

Department of Management Services

Division of Retirement

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399 - 9000

Sarabeth Snuggs, D irector

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32399 - 9000

Alberto Dominguez, General Counsel

Division of Retirement

Post Office Box 9000

Tallahassee, Florida 32399 - 9000

NOTICE OF RIGHT TO SUB MIT 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.