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

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL HUNT, )

)

Petitioner, )

)

vs. ) Case No s . 05 - 2559

) 05 - 3724F

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

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

Melbourne, Florida, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitio ner: Adrienne Eent, Esquire

Allen & Trent, P.A.

700 N orth Wickham Road, Suite 107

Melbourne, Florida 32935

For Respondent: Robert B. Button, Esquire

Department of Management Servic es

Division of Retirement

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

The issue f or determination is whether Petitioner satisfies

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

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

Florida Ret irement System (FRS) .

PRELIMINARY STATEM E NT

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

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

purchase past service from December 1976 through September 1999

when Petitioner was employed with the Harbor City Volunte er

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

Petitioner tim ely requested a formal hearing.

At the hearing, Petition er testified, presented the

testimony of one additional witness, and submitted 12 exhibits

for admission into evidence. Respondent called one live witness

and submitted the deposition testimony of another witness as

Respondent's only exhib it.

The ALJ gr anted Petitioner ' s Request for Official

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

Florida Statutes (2005) ; Florida Administrative Code

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

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

Official Recognition of Section 121.081 and Subsections

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

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

60S - 2.003 ; and Futch v. Division of Retirement , DOAH Case

No. 83 - 2239.

The identity of the witnesses and exhibits, and the rulings

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

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

undersigned granted Respondent's request for an extension of

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

Respondent timely filed their respective PROs on December 23

and 22, 2005.

During the formal hearing, Petitioner also filed a Motion

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

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

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

Fees and Costs (Motion to Dismiss) .

FINDINGS OF FACT

1. Petitioner was employed as a State Certified Paramedic

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

Brevard County, Florida , from sometime in December 1976 through

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

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

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

2. Petitioner's employment with HCVAS and BCFR was

continuous, with no break in service. Petitioner performed

identical services with HCVAS and BCFR and had identical duties

and responsibilities. At BCFR, P etitioner received credit for

80 percent of the seniority and leave accrued while Peti tioner

was employed with HCVAS.

3 . From sometime in October 1992 through September 30,

1999, HCVAS furnish ed emergency and non - emergency ambulan ce

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

Brevard County, Florida, that is legally described in

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

ambulance service pursuant to a contract with the Brevard County

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

independent contractor with the exclusive right to provide

ambulance service in the service area .

4. The County, rather than HCVAS , provided emergency

ambulance service for that part of the County outside the

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

Health Services provided non - emergency ambulanc e service outside

the service area.

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

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

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

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

However, employees of HCVAS were not volunteers , but were

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

including Petitioner, from fu nds received from the County .

6 . The County retained exclusive control of communication

and dispatching of emergency calls for the entire County,

including th e service area . The County required HCVAS to

maintain communication equipment that was compatible with the

centra l communication system.

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

of functions or activities" from HCVAS within the meaning of

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

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

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

provide emergency ambulance service t o the service area

previously serv ed by HCVAS. The County also authorized the

c ounty m anager to purchase rescue units and equipment and

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

equipment of HCVAS.

9. Eligibility for HCVAS employees such as Petitioner to

participate in the FRS arose through the assumption of HCVAS

functions by the County. The County did not employ HCVAS

employ ees , including Petitioner, as a result of competitive

selection. The primary conditions of employment for HCVAS

employees such as Petitioner were that each HCVAS employee must

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

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

background check.

10. The County directed its Public Safety Department

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

including Petitioner , by hiring as many HCVAS employees as

possible . Applications for employment from the general public

were to be accepted only if employment positions remained

unfilled after placing all qualified HCVAS employees in

available positions.

11. A pproximately 95 HCVAS employees, including

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

employed approxi mately 90 of the 95 applicants. The five

applicants who were not employed were rejected because the

applicants either did not possess a valid Florida driver's

license or did not pass the crimin al background screening.

Rejection of an applicant required approval of two supervisors.

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

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

credited each new employee with seniority, annual leave, and

sick leave based on a contractual formula negotiated with the

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

sic k leave earned while employed by HCVAS.

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

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

in the FRS system through the "assumption of functions or

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

under the system" within the meaning of Subsection

121.021(1)(f), Florida Stat utes (2005). On the same date,

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

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

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

employing entity . "

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

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

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

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

between units of government di d not occur.

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

with a written reply . The reply explained that the application

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

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

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

or consolidation of functions between units of government .

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

issued written statement s of proposed Final Agency Action . On

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

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

had not occurred when the County undertook emergency ambulance

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

the addit ional ground that an assumption of functions did not

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

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

CONCLUSIONS OF LAW

17 . DOAH has jurisdiction over the parties and the subject

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

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

formal hearing.

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

Petitioner must show by a preponderance of the evidence that he

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

assumption of functions or activities " by the County from HCVAS

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

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

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

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

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

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

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

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

relevant part, provides:

(f) When any person, either prior to this

act or hereafter, becomes entitled to and

does participate in one of the retirement

systems con solidated within or created by

this chapter through the consolidation or

merger of governments or the transfer of

functions between units of government,

either at the state or local level or

between state and local units, or through

the assumption of funct ions or activities by

a state or local unit from an employing

entity which was not an employer under the

system , and such person becomes a member of

the Florida Retirement System, such person

shall be entitled to receive past - service

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

time such person performed services for, and

was an employee of, such state or local unit

or other employing entity prior to the

transfer, merger, consolidation, or

assumption of functions and activities .

( e mphasis added)

Petitioner showed by a preponderance of evidence that he

satisfies the relevant statutory requirements to purchase credit

in the FRS for past service with HCVAS.

20. Respondent invokes the judicial doctrine of "great

deference" for Respondent's interpretation that t he statutory

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

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

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

Respondent interprets the term "employing entity" to ex clude

private employer s such as HCVAS .

21 . The quoted statutory terms are not defined by statute

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

reasonable basis to support a finding that an interpretation of

the quoted terms requires s pecial agency insight or expertise.

Petitioner did not articulate any underlying technical reasons

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

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

2d 939, 943 - 944 (Fla. 1st D CA 1984).

22 . Respondent argues that i ts interpretation of the term

"employing entity" is the interpretation that Respondent has

always adopted in applying the statute and that a contrary

interpretation would be expensive for the FRS . Neither argument

ar ticulates agency expertise or an underlying technical reason

for deference to agency expertise.

23 . The statutory interpretation adopted by Respondent is

not entitled to deference for the additional reason that the

proposed statutory interpretation is cle arly erroneous.

Respondent has previously interpreted the term "employing

entity" to include a private company.

24 . Respondent previously issued final orders adopting in

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

concluded that an assumption of functions occurred when a county

government assumed functions previously performed by a private

company. Futch v. State of Florida, Department of

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

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

1984); Strine v. Department of Administration, Division of

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

toto in Final Order dated January 23, 1981).

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

Brevard Ambulance Service (BAS) contracted with Brevard County ,

Florida to provide services as the Emergency Medical Services

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

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

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

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

County position of EMS d irector. The hearing officer concluded

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

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

p aragraph 11 (3d unnumbered page).

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

contract with National City Management Company (National City),

a private company that employed Mr. Strine and had provided

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

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

County authorized the city manager to assume the functions

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

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

concluded that National City, a private company, was an

"employing entity" and that Metro Dade County assumed the

functions of an employing entity that was not an employer under

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

27 . The judicial doctrine of stare decisis applies to

administrative proceedings, including this one. An agency,

including Respondent, is bound by its previous final orders

unless the facts or law in this proceeding are distinguishable

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

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

501, 503 (Fla. 4th DCA 1993) reh . denied December 21, 1993;

modified temporally , but not su bstantively in Caserta v.

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

651, 653 (Fla. 5th DCA 1996).

28 . The previously discussed conclusions in Futch and

Strine are not di stinguishable from Respondent's proposed

interpretation in this proceeding of the term s "assumption of

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

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

interpreted to include a county government's assumption of

functions from a private company that had not been an employer

under the FRS.

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

final orders, Respondent is also bound by relevant appellate

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

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

3d DCA 1985), the court concluded that an assumption of

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

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

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

employees of the private company were entitled to purchase

retirement credit for their past service with the private

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

substantive statutory provisions at issue in Wilson are now

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

See also Schoettle v . Department of Administration, Division of

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

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

retirement for a t eacher at a private school and rejecting

Respondent's conclusion that Respondent always denied credit

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

30 . In Futch , Respondent denied an application to purchase

credit for past service based on facts not evidenced in this

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

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

employment with BAS. The County did not take over ambulance

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

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

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

that were identical to those he performed for BAS. The

responsibilities of the EMS coordinator comprised only five

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

employment of Mr. Futch by the County arose through competitive

selection rather than the assumption of functions by the County.

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

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

accumulated leave and seniority. The County assumed the

functions of emergency ambulance service from HCVAS at the time

that Petitioner became a County employee. Petitioner perform ed

identical duties for the Coun ty and HCVAS .

32 . T he employment of Petitioner by the County arose

through the assump tion of functions by the County rather than

competitive selection. Petitioner was eligible for continued

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

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

check. The County directed its Public Safety Department

(Department) to give special consideration to Petitioner and to

hire Petitioner if at all possible. Petitioner 's application

for employment did not compete against those from the general

public. The Department employed approximately 95 percent of the

HCVAS employees who applied for employment.

33 . The Motion to Dismiss Petitioner's request for

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

State Retirement Commission to award attorney 's fees and costs

is limited to disability appeals. Petitioner did not reply to

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

reasons stated in the M otion .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent enter a final order granting

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

service with HCVAS.

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

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of January , 2006 .

COPIES FURNISHED :

Robert B. Button, Esquire

Department of Management Servic es

Division of Retirement

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

Adrienne Eent, Esquire

Allen & Trent, P.A.

700 North Wickham Road, Suite 107

Melbourne, Florida 32935

Alberto Dominguez, General Counsel

Department of Manageme nt Services

Post Office Box 9000

Tallahassee, Florida 32399 - 9000

Sarabeth Snuggs, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32399 - 9000

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.