06-003265 Silvia M. Urrechaga vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Monday, December 11, 2006.

Summary: Because Petitioner held a "regularly established position" during the period from January 1979 through June 1979, when she worked as a teacher`s assistant for a district school board, she is entitled to receive retirement service credit for that period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SILVIA M. URRECHAGA, ) ) )

)

Petitioner, ) Case No. 06-3265

)

vs. )

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent.

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

November 3, 2006, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Sylvia M. Urrechaga, Esquire

Law Offices of Sylvia M. Urrechaga, P.L.

3211 Ponce de Leon Boulevard, Suite 200

Coral Gables, Florida 33134

For Respondent: Larry D. Scott, Esquire

Department of Management Services

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner held a

"regularly established position" during the period from January

1979 through June 1979, when she worked as a teacher's assistant

for a district school board; if so, then she would be entitled

to receive retirement service credit for the period, which

Respondent so far has declined to grant.

PRELIMINARY STATEMENT

By letter dated May 26, 2006, Respondent Department of

Management Services, Division of Retirement, notified Petitioner

Silvia M. Urrechaga that it intended to deny her request for

retirement service credit respecting the period from January

1979 through June 1979, when she had worked as a teacher's

assistant for the Miami-Dade County School Board. Respondent

based its determination on the conclusion that Urrechaga's

position at that time had been a temporary one, rather than a

regularly established position.

Ms. Urrechaga timely requested a formal hearing, and on

August 29, 2006, Respondent referred the matter to the Division

of Administrative Hearings, where an Administrative Law Judge

was assigned to conduct a formal hearing.

The hearing took place on November 3, 2006, as scheduled,

with both parties present, each represented by counsel.

Petitioner offered Petitioner's Exhibit 1, which was received in

evidence. She called no witnesses. Respondent presented one

witnesses: Joyce Morgan, an Administrator in the Enrollment

Section of the Division of Retirement. Respondent also moved

three exhibits, numbered 1 through 3, into evidence. The

parties jointly offered——and the undersigned admitted into

evidence——the deposition testimony of Maria Perez, together with

all of the exhibits included with the transcript.

The final hearing was recorded but not transcribed.

Proposed Recommended Orders were due on November 13, 2006, and

each party timely filed one. The parties' submissions were

considered.

FINDINGS OF FACT

Historical Facts

1. Petitioner Silvia Urrechaga ("Urrechaga") worked for

nearly 30 years, in various positions, as an employee of the

Miami-Dade County School Board ("MDCSB"). As an employee of a

district school board, she became a member of the Florida

Retirement System ("FRS"), which is administered by Respondent

Department of Management Services, Division of Retirement

("Division").

2. It is undisputed that, before July 1, 1979 (and thus at

all times material to this case), local employers (such as

district school boards) that participated in the FRS had the

authority to determine, in the exercise of discretion, which of

their employees would be covered under the FRS. At that time,

the Division did not have the authority to review and overrule

local employers' decisions in this regard.

3. From January 1979 through June 1979, Urrechaga was

employed as a teacher's assistant. A "Request for Personnel

Action" memorandum dated January 8, 1979, memorializes MDCSB's

hiring of Urrechaga to fill this part-time hourly position. The

memorandum specified that Urrechaga would be "paid from

discretionary funds until [the] end of [the] 78/79 school year."

4. On or around January 19, 1979, a "Personnel Transaction

Form" was completed, wherein it was recorded that, effective

January 8, 1979, Urrechaga would participate in Retirement Plan

"F." It is undisputed that Plan "F" meant the FRS. It is

further recorded on the personnel form that MDCSB would

contribute 9.1 percent of Urrechaga's salary into the FRS trust

to fund her retirement benefit.

5. An Annual Earnings Report for the 1978-79 school year

shows that for the payroll period ending February 6, 1979——her

first as a teacher's assistant——Urrechaga was paid a gross

salary of $208.89, and that MDCSB deposited 9.1 percent thereof,

or $19.01, into the FRS trust for the benefit of Urrechaga, a

Plan "F" participant. Beginning with the very next pay period,

however, and continuing through the end of June 1979,

Urrechaga's retirement plan designation on the Annual Earnings

Report is "J" rather than "F." It is undisputed that "J" meant

no retirement benefit. Consistent with that designation, MDCSB

(apparently) did not contribute to the FRS on Urrechaga's behalf

for the pay periods ending February 9, 1979 through June 22,

1979, at least according to the Annual Earnings Report.

6. MDCSB does not presently have any records documenting

the grounds, if there were any, for removing Urrechaga from the

FRS. There are likewise no existing records reflecting that

Urrechaga was notified contemporaneously that, wittingly or

unwittingly, she had been taken out of the retirement plan. It

is reasonable to infer, and the undersigned does so, that MDCSB

neither informed Urrechaga that she was being excluded from

participation in the FRS nor notified her about any

administrative remedies that she might have had in consequence

of such action.

7. Years later, after an issue had arisen regarding

whether Urrechaga is entitled to retirement service credit for

the months from January 1979 through June 1979, MDCSB

investigated the situation and concluded that Urrechaga had been

removed from the retirement plan by mistake. This determination

was reported to the Division by MDCSB's Retirement Coordinator,

Maria Y. Perez, in a letter dated July 23, 2003, which provided

in pertinent part as follows:

In reviewing the payroll/personnel records

of Ms. Urrechaga, it's [sic ] been determined

that from January, 1979 through June, 1980,

she was excluded from the retirement plan in

error.

Ms. Urrechaga was hired January 8, 1979, as

a part-time hourly teacher assistant, job

code 4259, a position eligible for

retirement coverage[,] and [she] worked

though June, 1979 [in that position.]

8. The Division refused to accept MDCSB's determination,

however, on the ground that it was not supported by sufficient

proof that Urrechaga had been paid out of a "regular salary

account." Consequently, by letter to the Division dated

February 28, 2006, Ms. Perez reiterated MDCSB's conclusion,

stating in relevant part as follows:

Although I cannot provide you with a

specific account serial number listing

indicating [sic ] that specifically Ms.

Urrechaga was in a regularly established

position; all our hourly teachers assistants

were hired in a regularly established

position, particularly as late as 1979, and

not in a [sic ] Other Personnel Services

accounts.

As support for this statement, Ms. Perez furnished the Division

with the records of several other teacher's assistants who, the

records unambiguously show, had been treated by MDCSB as FRS

participants at the time that Urrechaga, who held the same

employment position, had been excluded from the retirement plan.

9. As of the final hearing, Ms. Perez continued to be

MDCSB's Retirement Coordinator, a position she had held since

1982. In that capacity, Ms. Perez was MDCSB's senior management

person in charge of retirement matters. Ms. Perez's

communications to the Division regarding Urrechaga, which were

written in her official capacity as MDCSB's agent, did not give

voice to mere personal opinions, but rather——as statements

clearly falling within the scope of her agency and

authority——constituted MDCSB's official statements on the

subject of Urrechaga's retirement benefit. 1

10. In other words, Ms. Perez's letters to the Division

concerning Urrechaga's retirement benefit expressed an agency

determination of Urrechaga's substantial interests, namely the

conclusion that Urrechaga had worked for MDCSB in a regularly

established position and, accordingly, was supposed to have been

a participant in the FRS during the period from January 1979

through June 1979, notwithstanding that conflicting statements

in contemporaneously prepared documents give rise to some

confusion concerning her participation therein. 2

Determinations of Ultimate Fact

11. From January 1979 through June 1979, Urrechaga worked

in a "regularly established position" as a teacher's assistant

with MDCSB. As an employee in such a position, Urrechaga was

entitled to participate in the FRS, and she earned retirement

service credit for her work during the period at issue.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569, and 120.57(1), Florida Statutes.

13. The Division contends that Urrechaga did not earn

retirement service credit for the period at issue because she

did not hold a "regularly established position" as a teacher's

assistant and hence was ineligible to participate in the FRS.

This contention rests on the premise that whether a position was

"regularly established" depended on the budgetary account from

which the employee was paid. According to the Division, if an

employee were paid out of a "regular salary account" (meaning an

account containing funds that had been appropriated specifically

to pay salaries), then that employee held a "regularly

established position." If, on the other hand, an employee's

compensation were drawn from some type of account other than a

"regular salary account," then, the Division argues, she was not

holding a "regularly established position."

14. From the premise that the account on which an

employee's salary was drawn dictated the status of that

employee's position as regularly established or, alternatively,

temporary in nature, the Division asserts, based on the

January 8, 1979, personnel action memorandum, that Urrechaga was

paid from "discretionary funds," which source the Division

assumes did not include salary appropriations. Thus, having

been paid (the Division infers) from a source other than a

regular salary account, Urrechaga was not (the Division reasons)

in a regularly established position, and hence she is not (the

Division concludes) entitled to retirement service credit for

the months she worked as a teacher's assistant.

15. As for the conflicting statements regarding

Urrechaga's retirement status that appear in the

contemporaneously prepared records, the Division argues that

Urrechaga has failed to prove that MDCSB made a mistake in

removing her from the FRS. In fact, argues the Division,

MDCSB's mistake was not this subsequent removal, but rather,

most likely, the initial inclusion of Urrechaga in the FRS at

the outset of her employment as a teacher's assistant.

16. One shortcoming of the Division's position is that it

gives short shrift to the fact that MDCSB as an agency (and not

simply Ms. Perez individually) has found that Urrechaga did hold

a regularly established position and that she was entitled to

participate in the FRS and that her exclusion from the

retirement plan was, in fact, a mistake . (Needless to say,

Urrechaga agrees with MDCSB and urges that her former employer's

findings be accepted as determinative.) Collectively, these

conclusions amount to an agency determination of Urrechaga's

substantial interests. Urrechaga obviously had no reason to

challenge this agency determination, which is consistent with

her interest in maximizing her retirement benefit. Arguably,

she is entitled to rely on such determination as an

authoritative resolution of the matter by the relevant agency

decision-maker.

17. The question arises, however, whether MDCSB's recent

determination of Urrechaga's interests in this regard

constitutes effective agency action, given that local employers

are no longer empowered to decide which employees will

participate in the FRS and which will not. Although the parties

have stipulated that MDCSB had the authority, during the period

at issue, to decide Urrechaga's FRS participation status for the

period at issue, neither has addressed the separate question of

whether MDCSB possesses such authority presently . This question

is complicated by the fact that MDCSB's actions in 1979 vis-à-

vis Urrechaga's retirement benefit were inconsistent (first she

was in the FRS, then she was out, despite the lack of any

intervening change in circumstances), creating confusion as to

what MDCSB's intended decision at the time really was.

18. Adding yet another wrinkle is that MDCSB did not

contemporaneously notify Urrechaga of its February 1979 action

removing her from the FRS. Clearly, however, MDCSB's action,

whether accidental or otherwise, affected Urrechaga's

substantial interests.

19. The absence of contemporaneous, timely notice to

Urrechaga concerning MDCSB's long-ago action is critical, for it

is a fundamental tenet of administrative law that when an agency

determines a party's substantial interests, the agency must

grant the affected party a clear point of entry into formal or

informal proceedings under Chapter 120, which point of entry

cannot be "so remote from the agency action as to be ineffectual

as a vehicle for affording [the affected party] a prompt

opportunity to challenge" the decision. See , e.g. , General

Development Utilities, Inc. v. Florida Dep't of Environmental

Regulation , 417 So. 2d 1068, 1070 (Fla. 1st DCA 1982).

Moreover, unless and until a clear point of entry is offered,

"there can be no agency action affecting the substantial

interests of a person." Florida League of Cities, Inc. v. State

of Florida, Administration Com. , 586 So. 2d 397, 413 (Fla. 1st

DCA 1991). Indeed, absent a clear point of entry, "the agency

is without power to act." Id. at 415.

20. Because MDCSB failed timely to inform Urrechaga of her

right to request a hearing and the time limits for doing so, the

decision to remove Urrechaga from the FRS did not take effect as

final agency action in 1979. As a result, when in recent years

MDCSB determined that the removal of Urrechaga from the FRS had

been accidental, it renounced a decision that had not been, as a

matter of law, final agency action and which, therefore,

remained open to administrative challenge pursuant to Chapter

120. Not only that, the removal of Urrechaga from the FRS in

1979, as MDCSB has now made clear, was not even the intended

agency action in the first place.

21. Under these peculiar circumstances, where a local

employer's action taken before July 1, 1979, purported adversely

to affect an employee's participation in the FRS but never

became final for want of a clear point of entry, the undersigned

concludes that the local employer retains continuing authority

to take final agency action, nunc pro tunc , with regard to the

matter of the employee's FRS participation for periods prior to

July 1, 1979. To conclude otherwise effectively would deprive

the local employer, retroactively, of the authority to determine

(in the first instance at least) the nature of its employee's

pre-July 1, 1979, retirement benefit, which authority, the

parties agree, was vested in the local employer at all times

relevant hereto.

22. Accordingly, it is concluded that MDCSB's

determination that Urrechaga should have been included in the

state retirement plan during the relevant period——and would have

been, but for MDCSB's mistake——is effective agency action that

constitutes the operative determination of Urrechaga's status as

a participant in the FRS.

23. The question next arises whether it is permissible in

this case for the Division to challenge the correctness of (and

potentially reverse) MDCSB's determination. It is by no means

self-evident that the Division should have the authority to undo

a local employer's determination regarding whether one of its

employees participated in the FRS during a pre-July 1, 1979,

period, and the Division has not cited any legal authority under

which it might possess such power. Exercise of such oversight,

moreover, is arguably inconsistent with the stipulated fact

that, at all times relevant to this case, local employers such

as MDCSB had the exclusive authority to determine, in the

exercise of discretion, which of their employees would

participate in the FRS.

24. If, however, the Division were authorized to reverse a

local employer's decision regarding an employee's pre-July 1,

1979, retirement status, then the Division should be required to

bear the burden, as the party seeking to set aside another

agency's determination, of proving that the local employer

erred. Therefore, assuming for argument's sake (without

deciding or opining) that the Division has the power to do today

that which it admittedly could not do during the relevant period

in 1979, namely overrule MDCSB's decision that Urrechaga shall

participate in the FRS, it is the Division which must show that

MDCSB committed reversible error. 3

25. The Division has not offered any persuasive evidence

that MDCSB's determination was erroneous. Consequently, the

undersigned concludes that, for the purposes of this proceeding,

MDCSB's determination should be given effect. Based thereon, it

has been determined, as a matter of ultimate fact, that from

January 1979 through June 1979, Urrechaga worked in a regularly

established position as a teacher's assistant with MDCSB. As an

employee in such a position, Urrechaga was entitled to

participate in the FRS, and she earned retirement service credit

for her work during the period at issue.

26. Notwithstanding the foregoing, as an independent and

alternative means of reaching the recommended disposition, the

undersigned will proceed to analyze the instant dispute from the

Division's standpoint, in accordance with which MDCSB shall be

viewed, not as an authoritative decision-maker, but as an

ordinary fact witness.

27. It is the Division's position, recall, that Urrechaga

is not entitled to retirement service credit for the period at

issue because, having been paid out of "discretionary funds" (as

opposed to a regular salary account), her position necessarily

was not a "regularly established position" within coverage of

the FRS.

28. To understand and evaluate this argument, it is

necessary to review carefully the pertinent administrative rules

that were in effect during the relevant period. 4 The definition

of the term "member" is a useful starting point. Florida

Administrative Code Rule 22B-6(27) provided as follows:

MEMBER —— Means any officer or employee who

is covered by the provisions of the Florida

Retirement System, including any officer or

employee who is on a leave of absence that

is creditable under the Florida Retirement

System.

(Emphasis added to highlight another defined term.) This tells

that all members (i.e. participants in the FRS) necessarily were

officers or employees. 5 Thus, to receive retirement service

credit for the period at issue, Urrechaga needed to have been an

"officer or employee."

29. Rule 22B-6(29) defined the term "officer or employee"

as follows:

OFFICER OR EMPLOYEE —— Means any person

receiving salary payments for work performed

in a regularly established position with any

[state] agency . . . or any . . . district

school board[.] (See definition of

"regularly established position" and "salary

payments".)

(Emphasis added to highlight other defined terms). Without

dispute, Urrechaga met some aspects of this definition, while

her satisfaction of others is the subject of controversy, as

shown in the following list:

! person

? receiving "salary payments"

! for work performed

? in a "regularly established position"

! with a district school board

It is undisputed that Urrechaga is a person who worked for a

district school board. Thus, whether she was an "officer or

employee" turns on whether she (a) received "salary payments"

and (b) held a "regularly established position."

30. Rule 22B-6(38) defined the term "salary payments" as

follows:

SALARY PAYMENTS —— Means the compensation

paid out of salary appropriations to an

officer or employee of a state agency . . .

and the compensation paid to an officer or

employee of a local employer for work

performed in a regularly established

position , regardless of the source of the

funds from which paid . Payments by a state

agency from any fund other than a salary

appropriations fund shall not be considered

salary payments.

(Underlining added to highlight other defined terms; italics

added also). This definition of "salary payments" uses (and

hence depends on prior knowledge of the meaning of) the term

"officer or employee," whose definition not only uses (and hence

requires prior knowledge of the meaning of) the term "salary

payments," but also directs us to the definition of "salary

payments" in a parenthetical cross-reference. The respective

definitions of the terms "officer or employee" and "salary

payments" thus, unfortunately, are somewhat circular and, to

that extent, unhelpful.

31. Putting aside for the moment this logical conundrum,

the "salary payments" definition drew an important distinction

between state employees, on the one hand, and employees of local

employers on the other. The compensation paid to a state

employee would have constituted "salary payments" only if paid

out of salary appropriations. (To underscore this point, the

Rule's drafters restated it in the negative for emphasis:

"Payments by a state agency from any fund other than a salary

appropriations fund shall not be considered salary payments.")

With regard to the employees of local employers, however, the

Rule's approach was different. For such employees, all

compensation, regardless of the source of the funds , constituted

"salary payments," provided the compensation was paid for "work

performed in a regularly established position." The upshot is

that, under Rule 2B-6(38), an "officer or employee" of a local

employer could be paid "salary payments" from a fund other than

a salary appropriations fund for work performed in a "regularly

established position."

32. Because Urrechaga worked for a local employer rather

than a state agency, her compensation, unlike that of a state

employee, could have constituted "salary payments" even if her

paychecks were drawn on a discretionary account. Based on the

"salary payments" definition, therefore, it can be concluded

conditionally that Urrechaga received "salary payments" if (a)

she were an "officer or employee" who (b) was paid for working

in a "regularly established position."

33. Rule 22B-6(36) defined the term "regularly established

position" as follows:

REGULARLY ESTABLISHED POSITION —— Means any

position authorized in an employer's

approved budget or amendments thereto for

which salary funds are specifically

appropriated to pay the salary of that

position.

The Division argues that, under this definition, Urrechaga's

position was not regularly established because she was paid from

discretionary funds. But this argument overlooks the

possibility, which the "salary payments" definition explicitly

acknowledges, that a non-state employee might be paid from a

fund other than a salary appropriations fund for work performed

in a regularly established position . (If it were impossible, as

a matter of law, for a non-state employee to be compensated for

work performed in a regularly established position out of any

funds except salary appropriations——which is the Division's

position——then the "regardless of the [funding] source" proviso

in the definition of "salary payments" would be nonsensical.)

34. Once that possibility is brought to mind, it becomes

clear that, contrary to the Division's contention, the source of

funds from which a person was compensated is immaterial to the

question whether that person's position was regularly

established or not. 6 Indeed, read closely, the definition of

"regularly established position" requires only that, for a

position to be considered regularly established, funds must have

been specifically appropriated to pay that position's salary 7 ;

the definition does not further require that the funds

specifically appropriated to pay the salary of a position must,

as a condition of the position's being considered regularly

established, actually be drawn upon to pay a person holding the

position. 8

35. In this case, there is no direct evidence, one way or

the other, concerning the appropriation of funds to pay the

salaries of persons hired by MDCSB to work as teacher's

assistants in the 1978-79 school year. The document tending to

show that Urrechaga was paid from discretionary funds is

consistent, to be sure, with the inference that a specific

appropriation had not been made to pay her position's salary;

such circumstantial evidence is not, however, dispositive of the

question whether her position was regularly established. The

more persuasive circumstantial evidence, in the undersigned's

estimation, is Ms. Perez's testimony that, at the relevant time,

all of MDCSB's teacher's assistants worked in regularly

established positions. Ms. Perez's credible testimony in this

regard, which the undersigned has credited as truthful, was

sufficient to make a prima facie showing that Urrechaga's

position was regularly established. The Division did not offer

enough persuasive evidence successfully to rebut this testimony,

and, as a result, the undersigned has determined that, more

likely than not, Urrechaga held a regularly established position

as a teacher's assistant with MDCSB.

36. It can be concluded conditionally, therefore, that if

Urrechaga were an "officer or employee," then her compensation

consisted of "salary payments" because she was paid for work

performed in a regularly established position out of funds whose

source is irrelevant for purposes of deciding whether she

received "salary payments." It can be further concluded,

conditionally, that if Urrechaga received "salary payments,"

then she was an "officer or employee" for purposes of FRS

participation because she is otherwise a person who worked in a

regularly established position with a district school board. It

is logically impossible, under the relevant definitions, to

remove the foregoing conditions from these conclusions because,

as mentioned above, the definitions themselves are circular.

37. Abstract logic aside, it is certainly true as a

practical matter that, under any common understanding of the

term "employee," Urrechaga was an employee of MDCSB. Further,

the Division has not urged that Urrechaga be denied service

credit on the ground that she was not an employee, focusing

instead on whether she held a "regularly established position."

Having resolved that disputed issue in Urrechaga's favor, it is

concluded that she is entitled to retirement service credit for

the period at issue. 9

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Division enter a final order

awarding Urrechaga the retirement service credit that she earned

for working in a regularly established position as a teacher's

assistant with MDCSB during the period from January 1979 through

June 1979.

DONE AND ENTERED this 11th day of December, 2006, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of December, 2006.

ENDNOTES

1 / For this reason, it is immaterial that Ms. Perez did not have

personal knowledge regarding the personnel decisions taken with

respect to Urrechaga in 1979. In connection with issues

relating to Urrechaga's retirement service credit, Ms. Perez

spoke not as herself, but as MDCSB, which latter, being an

impersonal entity, necessarily must communicate its

institutional knowledge through authorized agents such as Ms.

Perez.

2 / The undersigned cannot think of any reason why, had MDCSB

reached the opposite conclusion (i.e. that Urrechaga was

properly excluded from participation in the FRS), Urrechaga

would not have been entitled to a Section 120.57 hearing to

challenge such determination. Of course, in the event,

Urrechaga had no reason to request a hearing on MDCSB's

determination, because it was favorable to her interests.

3 / As an alternative administrative remedy, the Division

possibly could seek a Section 120.57 hearing before MDCSB,

assuming (without deciding) that the decision in question

affects the Division's substantial interests. See , e.g. , §

120.569, Fla. Stat. (governing a party's right to hearing when

its substantial interests are determined by an agency); §

120.52(12)(defining "party" to include any "person" whose

substantial interests will be affected by proposed agency

action); § 120.52(13)(defining "person" to include any state

agency). Presumably, were such a case maintainable, MDCSB would

have the burden of "proving up" its determination in a de novo

hearing. Of course, MDCSB, not the Division, would have final

order authority in such a proceeding.

4 / The parties stipulated at hearing that Florida Administrative

Code Chapter 22B-6, as issued in May 1977, is applicable. All

references in the text to administrative rules refer to this

version of the relevant Chapter.

5 / The definition of "member" did not require, conversely, that

all officers and employees be FRS participants. Being an

"officer or employee" was a necessary, but not necessarily

sufficient, condition of being a member of the FRS.

6 / If, however, a state employee held a "regularly established

position" but was paid out of a fund other than a salary

appropriations fund, then his compensation could not, by

definition, have consisted of "salary payments," and, for that

reason, he could not have been deemed an "officer or employee"

(which by definition required receipt of "salary payments");

being something besides an "officer or employee," such a person

could not have been a "member" of the FRS.

7 / The undersigned assumes that in most instances where salary

funds have been appropriated specifically to pay a position's

salary, the position will be authorized in the employer's

budget.

8 / If the definition of "regularly established position" were

construed to require that the funds specifically appropriated to

pay the salary of a position must, as a condition of the

position's being considered regularly established, be drawn upon

to pay a person holding such position, then there would exist an

inconsistency between the definitions of "regularly established

position" and "salary payments" as these terms relate to non-

state employees. As a means of avoiding the ambiguity that

would arise from such an interpretation, it would be necessary

to note that while the definition of "regularly established

position" applies generally without making a distinction between

state and non-state employees, the definition of "salary

payments" specifically contemplates that non-state employees——in

explicit contrast to state employees——might receive, for work

performed in a "regularly established position," "salary

payments" from a source other than a salary appropriations fund.

Under a common rule of construction, the specifically applicable

provisions in the definition of "salary payments" properly would

be given precedence, in reference to non-state employees, over

the general language contained in the definition of "regularly

established position". See Gretz v. Florida Unemployment

Appeals Com'n , 572 So. 2d 1384, 1386 (Fla. 1991)(specific

statute controls over general statue covering the same subject

matter); accord Cone v. State Dept. of Health , 886 So. 2d 1007,

1012 (Fla. 1st DCA 2004). Resolving the putative definitional

conflict in this fashion would lead to the conclusion that, as

long as a position were authorized in a local employer's

approved budget, then that position would constitute a

"regularly established position" if the local employer

designated it as such. From this conclusion it would follow——as

stated in the text above, though for a different reason——that

the source of funds for paying the salary of a non-state

employee is irrelevant to whether such employee filled a

"regularly established position."

9 / The subject of MDCSB's potential liability to the FRS trust

for contributions that should have been made in 1979 toward

Urrechaga's retirement benefit, but which might not have been

made due to mistake or oversight, raises issues that are beyond

the scope of this proceeding. The undersigned need not and does

not express an opinion on that subject.

COPIES FURNISHED :

Sylvia M. Urrechaga, Esquire

Law Offices of Sylvia M. Urrechaga, P.L.

3211 Ponce de Leon Boulevard, Suite 200

Coral Gables, Florida 33134

Larry D. Scott, Esquire

Department of Management Services

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

Sarabeth Snuggs, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32399-9000

Steven S. Ferst, General Counsel

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.