05-002559 Michael Hunt vs. Department Of Management Services, Division Of Retirement
 Status: Closed
Recommended Order on Tuesday, January 31, 2006.


View Dockets  
Summary: Petitioner is eligible under Section 121.081(1)(f), Florida Statutes, to purchase credit in the Florida Retirement System for past service in a private ambulance company before the County assumed the functions of the private ambulance company.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8MICHAEL HUNT, )

11)

12Petitioner, )

14)

15vs. ) Case No s . 05 - 2559

24) 05 - 3724F

28DEPARTMENT OF MANAGEMENT )

32SERVICES, DIVISION OF )

36RETIREMENT, )

38)

39Respondent. )

41)

42RECOMMENDED ORDER

44Administrative Law Judge (ALJ) Daniel Manry conducted the

52administrative hearing of this case on October 12, 2005, in

62Melbourne, Florida, on behalf of the Division of Administrative

71Hearings (DOAH).

73APPEARANCES

74For Petitio ner: Adrienne Eent, Esquire

80Allen & Trent, P.A.

84700 N orth Wickham Road, Suite 107

91Melbourne, Florida 32935

94For Respondent: Robert B. Button, Esquire

100Department of Management Servic es

105Division of Retirement

1084050 Esplanade Way, Suite 160

113Tallahassee, Florida 32399 - 0950

118STATEMENT OF THE ISSUE

122The issue f or determination is whether Petitioner satisfies

131the eligibility requirements in S ubs ection 121.081(1)(f),

139Florida Statutes (2005 ), to purchase past service cred it in the

151Florida Ret irement System (FRS) .

157PRELIMINARY STATEM E NT

161By letters dated April 16 and May 25 , 2004 , Respondent

171proposes final agency action deny ing Petitioner's reque st to

181purchase past service from December 1976 through September 1999

190when Petitioner was employed with the Harbor City Volunte er

200Ambulance Squad, Inc., as a state certified paramedic .

209Petitioner tim ely requested a formal hearing.

216At the hearing, Petition er testified, presented the

224testimony of one additional witness, and submitted 12 exhibits

233for admission into evidence. Respondent called one live witness

242and submitted the deposition testimony of another witness as

251Respondent's only exhib it.

255The ALJ gr anted Petitioner ' s Request for Official

265Recognition of Subsections 121.081(1)(f) and 121.021(18),

271Florida Statutes (2005) ; Florida Administrative Code

277Rule 60S - 2.003 ; and Strine v. Division of Retirement , D OAH Case

290No. 80 - 1378. The ALJ also granted Respo ndent ' s request for

304Official Recognition of Section 121.081 and Subsections

311121.021(18), 121.051(2)(f)1 . , and 121.021(38), Florida Statutes

318(2005); Florida Administrative Code Rules 60S - 1.0075 and

32760S - 2.003 ; and Futch v. Division of Retirement , DOAH Case

338No. 83 - 2239.

342The identity of the witnesses and exhibits, and the rulings

352regarding e ach, are set forth in the one - volume Transcript of

365the hearing filed with DOAH on November 8, 2005. The

375undersigned granted Respondent's request for an extension of

383time to file proposed recommended orders (PROs). Petitioner and

392Respondent timely filed their respective PROs on December 23

401and 22, 2005.

404During the formal hearing, Petitioner also filed a Motion

413for Attorney's Fees and Costs based on Section 121.23, Florid a

424Statutes (2005). On December 22, 2005, Respondent filed

432Respondent's Motion to Dismiss Petitioner's Request for Attorney

440Fees and Costs (Motion to Dismiss) .

447FINDINGS OF FACT

4501. Petitioner was employed as a State Certified Paramedic

459by Har bor Cit y Volunteer Ambulance Squad, Inc. (HCVAS) , in

470Brevard County, Florida , from sometime in December 1976 through

479September 30, 1999. From October 1, 1999, through the date of

490the formal hear ing , Petitioner was employed as a county employee

501in an identical ca pacity with Brevard County Fire Rescue (BCFR) .

5132. Petitioner's employment with HCVAS and BCFR was

521continuous, with no break in service. Petitioner performed

529identical services with HCVAS and BCFR and had identical duties

539and responsibilities. At BCFR, P etitioner received credit for

54880 percent of the seniority and leave accrued while Peti tioner

559was employed with HCVAS.

5633 . From sometime in October 1992 through September 30,

5731999, HCVAS furnish ed emergency and non - emergency ambulan ce

584service in an area the parties refer to as the central part of

597Brevard County, Florida, that is legally described in

605Petitioner's Exhibit A (the service area) . HCVAS furnished

614ambulance service pursuant to a contract with the Brevard County

624Board of County Commissioners (the C ounty ) . HCVAS was an

636independent contractor with the exclusive right to provide

644ambulance service in the service area .

6514. The County, rather than HCVAS , provided emergency

659ambulance service for that part of the County outside the

669service area . A compa ny identified in the record as Coastal

681Health Services provided non - emergency ambulanc e service outside

691the service area.

6945 . HCVAS was an "employing entity which was not an

705employer under the [FRS] , " within the meaning of

713Subsection 121.081 (1) (f), Florid a Statutes (2005). HCVAS was a

724priva te, non - profit company rather than a government entity.

735However, employees of HCVAS were not volunteers , but were

744fu ll - time employees of HCVAS. HCVAS paid its employees,

755including Petitioner, from fu nds received from the County .

7656 . The County retained exclusive control of communication

774and dispatching of emergency calls for the entire County,

783including th e service area . The County required HCVAS to

794maintain communication equipment that was compatible with the

802centra l communication system.

8067 . On October 1, 1999, the County effected an "assumption

817of functions or activities" from HCVAS within the meaning of

827Subsection 121.081 (1) (f), Florida Statutes (2005). The County

836allowed the contract with HCVAS to expire on Se ptember 30, 1999.

8488. On April 13, 1999, the County authorized BCFR to

858provide emergency ambulance service t o the service area

867previously serv ed by HCVAS. The County also authorized the

877c ounty m anager to purchase rescue units and equipment and

888required th e c ounty m anager to give first priority to units and

902equipment of HCVAS.

9059. Eligibility for HCVAS employees such as Petitioner to

914participate in the FRS arose through the assumption of HCVAS

924functions by the County. The County did not employ HCVAS

934employ ees , including Petitioner, as a result of competitive

943selection. The primary conditions of employment for HCVAS

951employees such as Petitioner were that each HCVAS employee must

961apply for employment with the County no later than May 29, 1999;

973possess a vali d Florida driver's license; and pass a criminal

984background check.

98610. The County directed its Public Safety Department

994(Department) to give special consideration to HCVAS emplo yees,

1003including Petitioner , by hiring as many HCVAS employees as

1012possible . Applications for employment from the general public

1021were to be accepted only if employment positions remained

1030unfilled after placing all qualified HCVAS employees in

1038available positions.

104011. A pproximately 95 HCVAS employees, including

1047Petitioner, applie d for employment with the County. The County

1057employed approxi mately 90 of the 95 applicants. The five

1067applicants who were not employed were rejected because the

1076applicants either did not possess a valid Florida driver's

1085license or did not pass the crimin al background screening.

1095Rejection of an applicant required approval of two supervisors.

110412. On October 1, 1999, t he County recognized past service

1115with HCVAS by new employees such as Petiti oner . The County

1127credited each new employee with seniority, annual leave, and

1136sick leave based on a contractual formula negotiated with the

1146labor union equal to 80 percent of seniority, annual leave, and

1157sic k leave earned while employed by HCVAS.

116513. On October 1, 1999, former HCVAS employees employed by

1175the Count y, including Petitioner, be came entitled to participate

1185in the FRS system through the "assumption of functions or

1195activities" by the County from HCVAS "which was not an employer

1206under the system" within the meaning of Subsection

1214121.021(1)(f), Florida Stat utes (2005). On the same date,

1223Petitioner became a member of the special risk class of FRS and

1235is "entitled to receive past - service credit . . . for the time"

1249Petitioner "was an employee of [HCVAS] . . . the " other

1260employing entity . "

126314 . On Novemb er 6, 2003, Petitioner applied to purchase

1274credit in the FRS for his past service with HCVAS . On

1286December 23, 2003, Respondent denied Peti ti oner's request on the

1297ground that a " merger, transfer or consolidation " of functions

1306between units of government di d not occur.

131415 . On Januar y 8, 2004, Petitioner provided Respondent

1324with a written reply . The reply explained that the application

1335to purchase credit for p ast service was based on the County's

1347assumption of functions or se rvices by an employing entity t hat

1359was not a n employer under the FRS and not on a merger, transfer ,

1373or consolidation of functions between units of government .

138216 . By letter s dated April 16 and May 25 , 2004 , Respondent

1395issued written statement s of proposed Final Agency Action . On

1406April 16, 2004, Respondent based its proposed agency action on

1416the express ground that a " merger, transfer or consolidation "

1425had not occurred when the County undertook emergency ambulance

1434service in the service area. On May 25, 2004, Respondent added

1445the addit ional ground that an assumption of functions did not

1456occur between governmental units because HCVAS was a "not - for -

1468profit corporation" and not a " unit of government."

1476CONCLUSIONS OF LAW

147917 . DOAH has jurisdiction over the parties and the subject

1490matter i n this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

1501(2005). DOAH provided the parties with adequate notice of the

1511formal hearing.

151318 . Petitioner has the burden of proof in this proceeding .

1525Petitioner must show by a preponderance of the evidence that he

1536became entitled to and did participate in the FRS "through the

1547assumption of functions or activities " by the County from HCVAS

1557and that HCVAS was "an employing entity which was not an

1568employ er" under the FRS . § § 1 21.081(1)(f), 120.57(1)(j) , and

1580120.57 (1) (k), Fla. Stat. (2005) ; Young v. Department of

1590Community Affairs , 625 So. 2d 831 (Fla. 1993) ; Florida

1599Department of Transportation v. J.W.C. Co. , 396 So. 2d 778 (Fla.

16101st DCA 1981); and Balino v. Department of Health and

1620Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

163019 . Subsection 121.081 (1)(f), Florida Statutes (2005) , in

1639relevant part, provides:

1642(f) When any person, either prior to this

1650act or hereafter, becomes entitled to and

1657does participate in one of the retirement

1664systems con solidated within or created by

1671this chapter through the consolidation or

1677merger of governments or the transfer of

1684functions between units of government,

1689either at the state or local level or

1697between state and local units, or through

1704the assumption of funct ions or activities by

1712a state or local unit from an employing

1720entity which was not an employer under the

1728system , and such person becomes a member of

1736the Florida Retirement System, such person

1742shall be entitled to receive past - service

1750credit as defined in s . 121.021(18) for the

1759time such person performed services for, and

1766was an employee of, such state or local unit

1775or other employing entity prior to the

1782transfer, merger, consolidation, or

1786assumption of functions and activities .

1792( e mphasis added)

1796Petitioner showed by a preponderance of evidence that he

1805satisfies the relevant statutory requirements to purchase credit

1813in the FRS for past service with HCVAS.

182120. Respondent invokes the judicial doctrine of "great

1829deference" for Respondent's interpretation that t he statutory

1837phrase " an employing entity which was not e mployer under the

1848system" is limited to a public employer such as a city or other

1861local government unit that was not an employer under the FRS.

1872Respondent interprets the term "employing entity" to ex clude

1881private employer s such as HCVAS .

188821 . The quoted statutory terms are not defined by statute

1899or Respondent's rules. The record evidence does not s et forth a

1911reasonable basis to support a finding that an interpretation of

1921the quoted terms requires s pecial agency insight or expertise.

1931Petitioner did not articulate any underlying technical reasons

1939for deference to agency expertise. Johnston, M.D. v . Department

1949of Professional Regulation, Board of Medical Examiners , 456 So.

19582d 939, 943 - 944 (Fla. 1st D CA 1984).

196822 . Respondent argues that i ts interpretation of the term

"1979employing entity" is the interpretation that Respondent has

1987always adopted in applying the statute and that a contrary

1997interpretation would be expensive for the FRS . Neither argument

2007ar ticulates agency expertise or an underlying technical reason

2016for deference to agency expertise.

202123 . The statutory interpretation adopted by Respondent is

2030not entitled to deference for the additional reason that the

2040proposed statutory interpretation is cle arly erroneous.

2047Respondent has previously interpreted the term "employing

2054entity" to include a private company.

206024 . Respondent previously issued final orders adopting in

2069toto findings in two Recommended Orders that, in relevant part,

2079concluded that an assumption of functions occurred when a county

2089government assumed functions previously performed by a private

2097company. Futch v. State of Florida, Department of

2105Administration, Division of Retirement , Case No. 83 - 2239 (DOAH

2115March 12, 1984)(adopted in toto in Final Order dated March 14,

21261984); Strine v. Department of Administration, Division of

2134Retirement , Case No. 80 - 1378 (DOAH December 17, 1980)(adopted in

2145toto in Final Order dated January 23, 1981).

215325 . In Futch , the sole shareholder and president of t he

2165Brevard Ambulance Service (BAS) contracted with Brevard County ,

2173Florida to provide services as the Emergency Medical Services

2182(EMS) coordinator from October 1, 1969, through September 30,

21911977. On November 3, 1977, Mr. Futch resigned his position from

2202BAS and sold its assets. On November 4 , 1977, Mr. Futch became

2214a full - time employee of Brevard County in the newly created

2226County position of EMS d irector. The hearing officer concluded

2236there "was an 'assumption of functions' by the County when it

2247create d the EMS Director position in November, 1977." Futch , at

2258p aragraph 11 (3d unnumbered page).

226426 . In Strine , Metro Dade County, Florida , did not renew a

2276contract with National City Management Company (National City),

2284a private company that employed Mr. Strine and had provided

2294day - to - day management and operation of the county bus service

2307for approximately 10 years. On October 15, 1974, Metro Dade

2317County authorized the city manager to assume the functions

2326previously performed by National City. Mr. Stri ne then became a

2337full - time employee of Metro Dade County. The hearing officer

2348concluded that National City, a private company, was an

"2357employing entity" and that Metro Dade County assumed the

2366functions of an employing entity that was not an employer under

2377the FRS . Strine , at p aragraph 11 (4th unnumbered page).

238827 . The judicial doctrine of stare decisis applies to

2398administrative proceedings, including this one. An agency,

2405including Respondent, is bound by its previous final orders

2414unless the facts or law in this proceeding are distinguishable

2424from those in the agency's previous final orders. Gessler v.

2434Department of Business and Professional Regulation , 627 So. 2d

2443501, 503 (Fla. 4th DCA 1993) reh . denied December 21, 1993;

2455modified temporally , but not su bstantively in Caserta v.

2464Department of Business and Professional Regulation , 686 So. 2d

2473651, 653 (Fla. 5th DCA 1996).

247928 . The previously discussed conclusions in Futch and

2488Strine are not di stinguishable from Respondent's proposed

2496interpretation in this proceeding of the term s "assumption of

2506functions" and "employing entity . " In e ach proceeding, the

2516terms "assumption of functions" a nd "employing entity" were

2525interpreted to include a county government's assumption of

2533functions from a private company that had not been an employer

2544under the FRS.

254729 . In addition to being bound by Respondent's previous

2557final orders, Respondent is also bound by relevant appellate

2566jud icial decisions. In Wilson v. State of Florida, Department

2576of Administration, Division of R etirement , 472 So. 2d 525 (Fla.

25873d DCA 1985), the court concluded that an assumption of

2597functions occurred under former Subsection 121.081(1)(g),

2603Florida Statutes (1984 ), when a private company became "county -

2614owned." Wilson , 472 So. 2d at 530. T he court held that

2626employees of the private company were entitled to purchase

2635retirement credit for their past service with the private

2644company "pursuant to section 121.081(1)(g)." Id . The

2652substantive statutory provisions at issue in Wilson are now

2661contained in S ubsection 121.081(1)(f), Florida Statutes (2005) .

2670See also Schoettle v . Department of Administration, Division of

2680Retirement , 513 So. 2d 1299 , 1302 (Fla. 1st DCA 1987)(overruling

2690Respondent's denial of out - of - state service credit toward

2701retirement for a t eacher at a private school and rejecting

2712Respondent's conclusion that Respondent always denied credit

2719when the "employing entity" wa s private rather than public) .

273030 . In Futch , Respondent denied an application to purchase

2740credit for past service based on facts not evidenced in this

2751proceeding. In Futch , "there was no carry - over in benefits such

2763as . . . accumulated leave" from the applicant's prior

2773employment with BAS. The County did not take over ambulance

2783operations from BAS at the time that Mr. F utch became a County

2796employee. Rather, the County initiated its own service at a

2806later time. Mr. Futch did not perform duties for the County

2817that were identical to those he performed for BAS. The

2827responsibilities of the EMS coordinator comprised only five

2835pe rcent of the duties Mr. F utch performed at BAS . Finally, the

2849employment of Mr. Futch by the County arose through competitive

2859selection rather than the assumption of functions by the County.

286931 . In this proceeding, the County recognized Petitioner's

2878pas t service with HCVAS through a carry - over in benefits such as

2892accumulated leave and seniority. The County assumed the

2900functions of emergency ambulance service from HCVAS at the time

2910that Petitioner became a County employee. Petitioner perform ed

2919identical duties for the Coun ty and HCVAS .

292832 . T he employment of Petitioner by the County arose

2939through the assump tion of functions by the County rather than

2950competitive selection. Petitioner was eligible for continued

2957employment if he applied no later than May 29, 1999, possess ed a

2970valid Florida driver's license, and pass ed a criminal background

2980check. The County directed its Public Safety Department

2988(Department) to give special consideration to Petitioner and to

2997hire Petitioner if at all possible. Petitioner 's application

3006for employment did not compete against those from the general

3016public. The Department employed approximately 95 percent of the

3025HCVAS employees who applied for employment.

303133 . The Motion to Dismiss Petitioner's request for

3040attorney 's fees an d costs asserts that the authority of the

3052State Retirement Commission to award attorney 's fees and costs

3062is limited to disability appeals. Petitioner did not reply to

3072the Motion to Dismiss. The Motion to Dismiss is gran ted for the

3085reasons stated in the M otion .

3092RECOMMENDATION

3093Based on the foregoing Findings of Fact and Conclusions of

3103Law, it is

3106RECOMMENDED that Respondent enter a final order granting

3114Petitioner ' s application to purchase credit in the FRS for past

3126service with HCVAS.

3129DONE AND ENTER ED this 31st day of January , 2006 , in

3140Tallahassee, Leon County, Florida.

3144S

3145DANIEL MANRY

3147Administrative Law Judge

3150Division of Administrative Hearings

3154The DeSoto Building

31571230 Apalachee Parkway

3160Tallahassee, Florida 32399 - 3060

3165(850) 488 - 9675 SUNCOM 278 - 9675

3173Fax Filing (850) 921 - 6847

3179www.doah.state.fl.us

3180Filed with the Clerk of the

3186Division of Administrative Hearings

3190this 31st day of January , 2006 .

3197COPIES FURNISHED :

3200Robert B. Button, Esquire

3204Department of Management Servic es

3209Division of Retirement

32124050 Esplanade Way, Suite 160

3217Tallahassee, Florida 32399 - 0950

3222Adrienne Eent, Esquire

3225Allen & Trent, P.A.

3229700 North Wickham Road, Suite 107

3235Melbourne, Florida 32935

3238Alberto Dominguez, General Counsel

3242Department of Manageme nt Services

3247Post Office Box 9000

3251Tallahassee, Florida 32399 - 9000

3256Sarabeth Snuggs, Director

3259Division of Retirement

3262Department of Management Services

3266Post Office Box 9000

3270Tallahassee, Florida 32399 - 9000

3275NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

3281All parties have the right to submit written exceptions within

329115 days from the date of this Recommended Order. Any exceptions

3302to this Recommended Order should be filed with the agency that

3313will issue the Final Order in this case.

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Date
Proceedings
PDF:
Date: 04/26/2006
Proceedings: Final Order filed.
PDF:
Date: 04/19/2006
Proceedings: Agency Final Order
PDF:
Date: 02/20/2006
Proceedings: Petitioner`s Notice of Change of Address of Counsel and Substitution of Law Firm filed.
PDF:
Date: 01/31/2006
Proceedings: Recommended Order
PDF:
Date: 01/31/2006
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 01/31/2006
Proceedings: Recommended Order (hearing held October 12, 2005). CASE CLOSED.
PDF:
Date: 12/23/2005
Proceedings: Petitioner`s Proposed Recommended Order filed.
PDF:
Date: 12/22/2005
Proceedings: Respondent`s Proposed Recommended Order filed.
PDF:
Date: 12/22/2005
Proceedings: Respondent`s Motion to Dismiss Petitioner`s Request for Attorney Fees and Costs filed.
PDF:
Date: 12/02/2005
Proceedings: Order Granting Motion for Extension of Time (proposed recommended orders shall be filed on or before December 23, 2005) .
PDF:
Date: 11/30/2005
Proceedings: Motion for Extension of Time filed.
Date: 11/08/2005
Proceedings: Transcript of Proceedings filed.
PDF:
Date: 10/19/2005
Proceedings: Order of Consolidation (consolidated cases are: 05-2559 and 05-3724F).
PDF:
Date: 10/17/2005
Proceedings: Deposition (R. Dezube) filed.
Date: 10/12/2005
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 10/11/2005
Proceedings: Petitioner`s Motion for Official Recognition filed.
PDF:
Date: 10/07/2005
Proceedings: Motion for Official Recognition filed.
PDF:
Date: 10/06/2005
Proceedings: Respondent`s Clarification of Stipulated Fact in Pre-hearing Stipulation filed.
PDF:
Date: 10/04/2005
Proceedings: Notice of Taking Telephonic Deposition filed.
PDF:
Date: 09/30/2005
Proceedings: Pre-hearing Stipulation filed.
PDF:
Date: 08/24/2005
Proceedings: Notice of Transfer.
PDF:
Date: 08/16/2005
Proceedings: Notice of Taking Telephonic Deposition filed.
PDF:
Date: 08/16/2005
Proceedings: Notice of Appearance by Telephone filed.
PDF:
Date: 08/08/2005
Proceedings: Request for Subpoenas filed.
PDF:
Date: 08/08/2005
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 08/08/2005
Proceedings: Notice of Hearing (hearing set for October 12, 2005; 9:30 a.m.; Melbourne, FL).
PDF:
Date: 07/26/2005
Proceedings: Petitioner`s Response to Initial Order filed.
PDF:
Date: 07/18/2005
Proceedings: Initial Order.
PDF:
Date: 07/18/2005
Proceedings: Formal Petition for Review filed.
PDF:
Date: 07/18/2005
Proceedings: Final Agency Action filed.
PDF:
Date: 07/15/2005
Proceedings: Order Transferring Matter to the Division of Administrative Hearings filed.

Case Information

Judge:
DANIEL MANRY
Date Filed:
07/18/2005
Date Assignment:
10/03/2005
Last Docket Entry:
04/26/2006
Location:
Melbourne, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (5):