07-005050
Frederick M. Rhines vs.
Department Of Management Services, Division Of Retirement
Status: Closed
Recommended Order on Tuesday, June 3, 2008.
Recommended Order on Tuesday, June 3, 2008.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8FREDERICK M. RHINES, )
12)
13Petitioner, )
15)
16vs. ) Case No. 07-5050
21)
22DEPARTMENT OF MANAGEMENT )
26SERVICES, DIVISION OF )
30RETIREMENT, )
32)
33Respondent. )
35)
36RECOMMENDED ORDER
38Administrative Law Judge (ALJ) Daniel Manry conducted the
46final hearing of this case on behalf of the Division of
57Administrative Hearings (DOAH), on February 25, 2008, in
65Tallahassee, Florida.
67APPEARANCES
68For Petitioner: James W. Linn, Esquire
74Glenn E. Thomas, Esquire
78Lewis, Longman & Walker, P.A.
832600 Centennial Place, Suite 100
88Tallahassee, Florida 32308-0572
91For Respondent: Robert B. Button, Esquire
97Department of Management Services
1014050 Esplanade Way, Suite 160
106Tallahassee, Florida 32399-0950
109STATEMENT OF THE ISSUES
113The issues are whether Petitioner became an employee of an
123FRS employer within a calendar month after completing his
132participation in the Deferred Retirement Option Program (DROP)
140in violation of Subsection 121.091(13)(c)5.d., Florida Statutes
147(2006) 1 ; whether Respondent's interpretation of relevant statutes
155is an unadopted rule; and whether Respondent's interpretation of
164relevant statutes is an invalid exercise of delegated
172legislative authority.
174PRELIMINARY STATEMENT
176Respondent proposes, by letter dated October 2, 2007, to
185terminate any subsequent retirement benefits to Petitioner and
193for Petitioner to reimburse the Florida Retirement System (FRS)
202for retirement benefits received, including a lump-sum payment
210Petitioner received at the conclusion of his participation in
219DROP. Petitioner timely requested an administrative hearing.
226At the hearing, Petitioner testified, presented the
233telephonic testimony of one additional witness, and submitted
241one exhibit for admission into evidence. Respondent called one
250witness and identified one exhibit but did not submit the
260exhibit. The parties submitted seven joint exhibits for
268admission into evidence. The unopposed Request for Official
276Recognition of Legislative History is granted.
282The identity of the witnesses and exhibits, and the rulings
292regarding each, are set forth in the one-volume Transcript of
302the hearing filed with DOAH on March 10, 2008. The undersigned
313granted Petitioner's unopposed request for an extension of time
322to file proposed recommended orders (PROs). Petitioner and
330Respondent timely filed their respective PROs on April 30
339and 29, 2008.
342FINDINGS OF FACT
3451. The parties stipulated to several facts in this
354proceeding. Respondent is the state agency responsible for
362administering the FRS. Petitioner was employed as an equipment
371operator (street sweeper) by the City of Venice, Florida (the
381City), for more than 35 years until he completed his
391participation in DROP on January 11, 2007. At that time
401Petitioner was earning approximately $38,000.00 annually.
4082. The City revoked its participation in the FRS effective
418January 1, 1996, and established a new City retirement plan.
428The new City retirement plan applies to all employees hired
438after January 1, 1996. However, the City continued its
447participation in the FRS for all employees who were members of
458the FRS prior to January 1, 1996.
4653. Petitioner elected to participate in DROP on March 31,
4752002. At the conclusion of DROP, Petitioner received a lump-sum
485payment of approximately $84,279.00 and received monthly
493benefits until Respondent ceased paying benefits in accordance
501with the proposed agency action.
5064. Petitioner's efforts at reemployment were unsuccessful.
513On January 31, 2007, the City employed Petitioner to perform the
524same work he previously performed at a base salary as a "new
536hire." 2 The City assured Petitioner that reemployment would not
546adversely affect Petitioner's FRS retirement benefits because
553the City does not consider itself an FRS employer.
5625. A member of the City's human resources department
571contacted a representative for Respondent to verify the City's
580statutory interpretation. The conversation eventually led to
587this proceeding.
5896. Petitioner was not employed by an employer under the
599FRS during the next calendar month after completing his
608participation in DROP on January 11, 2007. Judicial decisions
617discussed in the Conclusions of Law hold that the issue of
628whether Petitioner is an employee of an FRS employer is a
639factual finding.
6417. When Petitioner began employment with the City on
650January 31, 2007, Petitioner was not a member of the FRS within
662the meaning of Subsection 121.021(12). He was not an employee
672covered under the FRS because he was hired after January 1,
6831996, when the City revoked its participation in FRS.
6928. On January 31, 2007, Petitioner was not an employee
702within the meaning of Subsection 121.021(11). Petitioner was
710not employed in a covered group within the meaning of
720Subsection 121.021(34). Petitioner did not become a member
728under Chapter 121, and the City was not a "city for which
740coverage under this chapter" was applied for and approved for
750Petitioner.
7519. On January 11, 2007, Petitioner ceased all employment
760relationships with "employers under this system" within the
768meaning of Subsection 121.021(39). When Petitioner resumed
775employment on January 31, 2007, Petitioner did not fail to
785terminate employment with an employer under the FRS system.
794Petitioner's new employer was not an employer under the FRS
804system and had not been such an employer after January 1, 1996.
81610. After January 1, 1996, the City was not a covered
827employer for any employees employed after that date, including
836Petitioner. On January 31, 2007, Petitioner was not an employee
846of an employer within the meaning of Subsection 121.021(10).
855The City did not participate in the FRS system for the benefit
867of Petitioner.
86911. The employment of Petitioner by the City on
878January 31, 2007, had no financial impact on the FRS, and
889Petitioner did not begin to accrue new benefits with the FRS.
900Respondent did not demonstrate in the record why the agency's
910proposed statutory interpretation requires special agency
916insight or expertise and did not articulate in the record any
927underlying technical reasons for deference to agency expertise.
935Nor did the agency explain in the record or its PRO why the
948issue of whether Petitioner is an employee of an FRS employer is
960not an issue of fact that is within the exclusive province of
972the fact-finder.
97412. Respondent proposes a literal interpretation of
981selected statutory terms without explaining legislative intent
988for the prohibition against reemployment within the next
996calendar month. 3 Respondent's proposed statutory interpretation
1003also fails to distinguish the economic impact in situations
1012involving what may be fairly characterized as a dual-purpose
1021employer; that is one like the City which is part covered
1032employer and part non-covered employer.
1037CONCLUSIONS OF LAW
104013. DOAH has jurisdiction over the parties and the subject
1050(2007). DOAH provided the parties with adequate notice of the
1060formal hearing.
106214. Respondent has the burden of proof in this proceeding.
1072Respondent must show by a preponderance of the evidence that
1082Petitioner became an employee of a covered employer within the
1092next calendar month after Petitioner concluded his participation
1100in DROP and that Petitioner must repay any FRS benefits he has
1112received. Young v. Department of Community Affairs , 625 So. 2d
1122831 (Fla. 1993); Florida Department of Transportation v. J.W.C.
1131Co. , 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v.
1143Department of Health and Rehabilitative Services , 348 So. 2d 349
1153(Fla. 1st DCA 1977). 4
115815. Regardless of which party has the burden of proof, a
1169preponderance of the evidence shows that on and after
1178January 31, 2007, Petitioner was not an employee of an FRS
1189employer. The determination is an issue of fact that is within
1200the exclusive province of the fact-finder. Johnson v.
1208Department of Management Services, Division of Retirement ,
1215962 So. 2d 1038 (Fla. 1st DCA 2007).
122316. Subsection 121.091(13)(c)5.d., in relevant part,
1229requires a DROP participant who fails to terminate employment
1238defined in Subsection 121.021(39)(b) to repay any benefits
1246received. Subsection 121.021(39)(b) defines termination, in
1252relevant part, to occur when a DROP participant "ceases all
1262employment relationships with employers under this
1268system. . . ." The City ceased being an employer under the FRS
1281on January 1, 1996. When Petitioner resumed employment with the
1291City on January 31, 2007, Petitioner did not have an employment
1302relationship with an "employer under this system."
130917. Respondent invokes the judicial doctrine of "great
1317deference" to Respondent's statutory interpretation. The record
1324evidence does not support a finding that an interpretation of
1334relevant statutory terms requires special agency insight or
1342expertise. Petitioner did not articulate any underlying
1349technical reasons for deference to agency expertise. Johnston,
1357M.D. v. Department of Professional Regulation, Board of Medical
1366Examiners , 456 So. 2d 939, 943-944 (Fla. 1st DCA 1984).
137618. In Petitioner's unopposed Amended Petition for Formal
1384Administrative Hearing and in Petitioner's PRO, Petitioner
1391argues, oxymoronically, that Respondent's proposed statutory
1397interpretation is "non-rule policy" that is an "unadopted rule."
1406Nonrule policy is agency policy that does not satisfy the
1416statutory definition of a rule and is not required to be
1427promulgated as a rule. An unadopted rule is agency policy that
1438satisfies the definition of a rule but has not been promulgated
1449in accordance with statutory rulemaking requirements.
145519. Agency policy cannot be both nonrule policy and an
1465unadopted rule. Regardless of the moniker, neither may exceed
1474delegated legislative authority without violating the separation
1481of powers doctrine. Chiles v. Children A, B, C, D, E, and F ,
1494589 So. 2d 260, 264-266 (Fla. 1991). See also Carver v.
1505Division of Retirement , 848 So. 2d 1203, 1206 (Fla. 1st DCA
15162003)(an agency may interpret, but never alter a statute).
152520. Petitioner is not required to file a duplicative
1534120.56 proceeding if his rule challenge is adequately addressed
1543in this proceeding conducted pursuant to Subsection 120.57(1)(a
1551120.57 proceeding). Department of General Services v. Willis ,
1559344 So. 2d 580, 591-592 (Fla. 1st DCA 1977). The remedies
1570available in a 120.56 and 120.57 proceeding are intended to
1580enhance the remedies available to Petitioner, not limit them.
158921. Petitioner's rule challenge is moot. The doctrine of
1598mootness requires a live case or controversy throughout the
1607administrative proceeding. Montgomery v. Department of Health
1614and Rehabilitative Services , 468 So. 2d 1014, 1016 (Fla. 1st DCA
16251985). A rule challenge is rendered moot when evidence shows
1635the rule no longer applies to the party initiating the rule
1646challenge. Id. See also A.G. v. Department of Children and
1656Family Services , 932 So. 2d 311, 313 (Fla. 2d DCA 2006)
1667(termination of parental rights case is moot when issues raised
1677by mother cease to exist); Merkle v. Guardianship of Robert J.
1688Jacoby , 912 So. 2d 595, 599-600 (Fla. 2d DCA 2005)(a stipulation
1699agreement reached after filing suit renders action moot). The
1708challenged rule no longer applies to Petitioner because
1716Petitioner prevailed on other grounds in this 120.57 proceeding.
172522. Petitioner's rule challenge is moot on other grounds.
1734If this Recommended Order were to determine that the challenged
1744agency policy is an unadopted rule and an invalid exercise
1754of delegated legislative authority, the remedy available under
1762Subsection 120.57(1)(e) is to preclude the agency from relying
1771on the rule; a remedy Petitioner has obtained whether the agency
1782policy is nonrule policy or an unadopted rule.
179023. Unlike a determination of invalidity in a 120.56
1799proceeding, a similar determination in this proceeding would not
1808be a final order and would not be infused with statutory
1819authority to require the agency to publish notice of the
1829invalidity of the rule. A determination of invalidity in this
1839proceeding would be limited to the parties and facts of record
1850and would not preclude the agency from relying on the rule in
1862other cases except to the extent the doctrine of stare decisis
1873may preclude reliance on the rule in other cases involving
1883similar facts and law. Gessler v. Department of Business and
1893Professional Regulation , 627 So. 2d 501, 504 (Fla. 4th DCA
19031993).
1904RECOMMENDATION
1905Based on the foregoing Findings of Fact and Conclusions of
1915Law, it is
1918RECOMMENDED that Respondent enter a final order reinstating
1926Petitioner's monthly retirement benefits, paying all past due
1934amounts to Petitioner, with interest, and dismissing its request
1943for reimbursement of past FRS benefits from Petitioner.
1951DONE AND ENTERED this 3rd day of June, 2008, in
1961Tallahassee, Leon County, Florida.
1965S
1966DANIEL MANRY
1968Administrative Law Judge
1971Division of Administrative Hearings
1975The DeSoto Building
19781230 Apalachee Parkway
1981Tallahassee, Florida 32399-3060
1984(850) 488-9675 SUNCOM 278-9675
1988Fax Filing (850) 921-6847
1992www.doah.state.fl.us
1993Filed with the Clerk of the
1999Division of Administrative Hearings
2003this 3rd day of June, 2008.
2009ENDNOTES
20101/ References to subsections, sections, and chapters are to
2019Florida Statutes (2006), unless otherwise stated.
20252/ On January 31, 2007, the City employed Petitioner in a part-
2037time position and provided full-time employment on February 12,
20462007. The new hourly rate was $12.72 compared to a previous
2057hourly rate of $18.63.
20613/ At the request of the undersigned at the hearing, the parties
2073filed 95 unnumbered pages of legislative history in this
2082proceeding. Respondent's PRO does not mention the legislative
2090history. Petitioner's PRO quotes some legislative language,
2097which is little more than circular with statutory terms, but
2107fails to cite to that part of the 95 pages of legislative
2119history to enable to fact-finder to go to that part of the
2131history for independent research.
21354/ The parties dispute the burden of proof in an apparent
2146anomaly. Petitioner's PRO asserts that he has the burden of
2156proof, and Respondent's PRO asserts that it has the burden of
2167proof.
2168COPIES FURNISHED :
2171Robert B. Button, Esquire
2175Department of Management Services
21794050 Esplanade Way, Suite 160
2184Tallahassee, Florida 32399-0950
2187James W. Linn, Esquire
2191Glenn E. Thomas, Esquire
2195Lewis, Longman & Walker, P.A.
22002600 Centennial Place, Suite 100
2205Tallahassee, Florida 32308-0572
2208Sarabeth Snuggs, Director
2211Division of Retirement
2214Department of Management Services
2218Post Office Box 9000
2222Tallahassee, Florida 32315-9000
2225John Brenneis, General Counsel
2229Department of Management Services
22334050 Esplanade Way
2236Tallahassee, Florida 32399-0950
2239NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2245All parties have the right to submit written exceptions within
225515 days from the date of this Recommended Order. Any exceptions
2266to this Recommended Order should be filed with the agency that
2277will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 06/03/2008
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 04/30/2008
- Proceedings: Proposed Recommended and Final Order of Petitioner, Frederick Rhines filed.
- PDF:
- Date: 04/23/2008
- Proceedings: Order Granting Extension of Time (proposed recommended orders to be filed by April 30, 2008).
- PDF:
- Date: 04/21/2008
- Proceedings: Motion for Extension of Time to File Proposed Recommended Order filed.
- PDF:
- Date: 04/04/2008
- Proceedings: Order Granting Extension of Time (proposed recommended order to be filed by April 23, 2008).
- PDF:
- Date: 04/02/2008
- Proceedings: Motion for Extension of Time to File Proposed Recommended Order filed.
- Date: 03/10/2008
- Proceedings: Transcript filed.
- PDF:
- Date: 02/29/2008
- Proceedings: Request to Take Official Recognition of Legislative History filed.
- Date: 02/25/2008
- Proceedings: CASE STATUS: Hearing Held.
- Date: 02/22/2008
- Proceedings: CASE STATUS: Pre-Hearing Conference Held.
- PDF:
- Date: 12/24/2007
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for February 25, 2008; 9:30 a.m.; Tallahassee, FL).
- PDF:
- Date: 12/14/2007
- Proceedings: Letter to Judge Manry from G. Thomas regarding agreeable dates for hearing filed.
- PDF:
- Date: 12/06/2007
- Proceedings: Order Granting Leave to Amend Petition for Formal Administrative Hearing.
- PDF:
- Date: 12/06/2007
- Proceedings: Notice of Hearing (hearing set for January 7, 2008; 9:30 a.m.; Tallahassee, FL).
Case Information
- Judge:
- DANIEL MANRY
- Date Filed:
- 11/02/2007
- Date Assignment:
- 11/02/2007
- Last Docket Entry:
- 09/23/2008
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- ADOPTED IN PART OR MODIFIED
Counsels
-
Robert B. Button, Esquire
Address of Record -
James W. Linn, Esquire
Address of Record -
Elizabeth Regina Stevens, Esquire
Address of Record