08-001011 Thomas L. Bright vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Friday, October 10, 2008.

Summary: Petitioner was denied credible service in the Florida Retirement Service. FRS classified his job as temporary, "on-call." The job was a permanent, regularly established position. FRS "equitably estopped" from denying credible service.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THOMAS L. BRIGHT, )

)

Petitioner, )

)

vs. ) Case No. 08-1011

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this case

on June 3, 2008, in Kissimmee, Florida.

APPEARANCE

For Petitioner: Brian D. Solomon, Esquire

Brian D. Solomon, P.L.

101 East 13th Street

St. Cloud, Florida 34769

For Respondent: Geoffrey M. Christian, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

STATEMENT OF THE ISSUE

The issue in this case is whether or not the position

Petitioner held with Brevard County, Florida, from December 5,

2005, to October 31, 2006, entitled him to service credit in the

Florida Retirement System (FRS).

PRELIMINARY STATEMENT

By letter dated November 7, 2007, Respondent, Department of

Management Services, Division of Retirement, notified

Petitioner, Thomas L. Bright, that a position he filled with the

Parks Department, Brevard County, Florida, was ineligible for

participation in the FRS. The FRS "denial" letter characterized

the position Petitioner held as a "temporary 'on-call'"

position. Petitioner timely requested a hearing, and this case

was forwarded to the Division of Administrative Hearings on

February 25, 2008, for formal hearing.

On February 26, 2008, an Initial Order was sent to both

parties. Based on the parties' responses to the Initial Order,

on March 21, 2008, the case was scheduled for final hearing in

Kissimmee, Florida, on April 15, 2008. On April 7, 2008,

Petitioner requested a continuance that was granted; the case

was rescheduled for June 3, 2008.

The final hearing took place as rescheduled. Petitioner

presented three witnesses: Jeffrey Whitehead, Frank Abate,

Carol Sheffield, and testified in his own behalf. Respondent

presented the testimony of Joyce Morgan. The parties jointly

presented 20 exhibits that were received into evidence and

marked accordingly.

In addition, Respondent requested official recognition of

Chapter 121, Florida Statutes, and Florida Administrative Code

Rule Chapter 60S.

The parties agreed to submit proposed recommended orders

before July 18, 2008. Both parties requested extensions to the

time for filing proposed recommended orders. These requests

were granted. Both parties filed Proposed Recommended Orders on

September 2, 2008, that were considered by the undersigned. The

Transcript of proceedings was filed with Division of

Administrative Hearings on September 8, 2008.

All references are to Florida Statutes (2006), unless

otherwise noted.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following Findings of Fact are made:

1. Petitioner is a member of the FRS. He first worked for

the Florida Department of Transportation in October 1976 and

remained with the Department of Transportation until

January 1980, when he began working for Osceola County, Florida.

He worked for Osceola County until May 1990, when he began

working for Brevard County, Florida. He worked for Brevard

County until 2004.

2. At the time he was laid off by Brevard County,

Petitioner had 25.5 years of credible service in the FRS.

3. Petitioner's expressed desire was to complete 30 years

of credible service in the FRS. To that end, he met with

Brevard County officials seeking re-employment in a position

that would qualify him for additional credible service.

4. In October 2005, Petitioner met with several Brevard

County employees, including the county manager and Human

Resource director, seeking a job that would enable him to get

4.5 more years of credible FRS service.

5. As a result of his meetings and efforts, on October 28,

2005, Petitioner was offered a part-time position as a park

ranger with duties that included "monitoring any scheduled

activities at Rodes [sic] Park on Friday and Saturday evenings

from approximately 9:00 p.m. to 1:00 a.m., to ensure orderly

behavior of park patrons."

6. Accepting the offered position, Petitioner was employed

as a Park Ranger I, with the stated job description. The

following information appears on a Brevard County document

titled "Authorization to Place Special Services Employee on

Payroll" which memorialized his employment:

Working Title: Park Ranger I, Part Time (less than

40 hrs per week);

Hire Date: 12/03/05; and

How many pay periods do you anticipate this job will

last? 19 (PP) 38wks.

Also noted on this document, "Enroll in FRS 95HA."

7. An inter-office memorandum dated November 17, 2005,

from Jeff Whitehead, south area parks operations manager to

Peggy Busacca, county manager, regarding Petitioner's hiring,

states in part: "This position will require an individual that

has an extremely flexible schedule and that can be asked, at

times, to report with very little notice. Furthermore, the

majority of shifts will be on Friday and Saturday evenings,

generally from 8:00 p.m. to 1:00 a.m. . . In addition,

providing Mr. Bright with this opportunity will render him

eligible to collect his retirement benefits."

8. Frank Abbate, Brevard County Human Resource director,

emailed Petitioner on December 19, 2005, stating, in part: "I'm

glad to see that . . . you were able to get a position with

Parks and Recreation that meets both[,] one of their

Department's needs[,] as well as your interest in continuing to

earn FRS service credits. I wish you the best and look forward

to your achieving your goal of thirty years service under FRS!"

9. Brevard County knew that Petitioner's employment was

conditioned on his inclusion as a participant in the FRS, and,

in fact, enrolled him in the FRS by making appropriate

contributions on his behalf to FRS. At no time did Brevard

County advise Petitioner that he was not participating in

the FRS. Petitioner relied on Brevard County's assertion that

he was an enrolled member of the FRS.

10. Petitioner was hired with the mutual expectation that

he would be available to work at Rhodes Park on any Friday and

Saturday nights from 8:00 p.m. to 1:00 a.m. and that the

employment would continue for 4.5 years so Petitioner would be

able to obtain 30 years of credible FRS service. There was

nothing "temporary" in the expectation of Petitioner and his

employer regarding the duration of employment. During the

period in question, December 2005 through October 2006,

Petitioner worked at least one day per month.

11. Petitioner's employment was continuing, not temporary,

on-call, in that he was scheduled to be available to work at his

assigned responsibility every Friday and Saturday. While

Petitioner did not work every Friday and Saturday night,

Petitioner did, in fact, work every Friday and Saturday night

during the period in question, as requested by his employer,

Brevard County. That is, he never failed to perform his

assigned duties when requested.

12. Petitioner was finally notified on November 7, 2007,

that he was ineligible for participation in FRS. During this

nearly two-year period of employment, Petitioner satisfactorily

performed his employment responsibilities.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter of these proceedings and of

the parties hereto pursuant to Sections 120.569 and Subsection

120.57(1), Florida Statutes (2007).

14. Chapter 121, Florida Statutes, contains the Florida

Retirement System Act. Respondent is charged with managing,

governing and administering the FRS. § 121.1905, Fla. Stat.

15. Petitioner has the burden of proving by a

preponderance of the evidence that he was an eligible

participant in the FRS during the period in question,

December 5, 2005 through October 31, 2006. Wilson v. Department

of Administration, Division of Retirement , 538 So. 2d 139,

141-42 (Fla. 4th DCA 1989); Florida Department of Transportation

v. J.W.C. Co., Inc ., 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

16. Brevard County is a local agency employer.

§ 121.021(42)(a), Fla. Stat. All employees of a local agency

are compulsory participants in the FRS. § 121.051(1)(a),

Fla. Stat. "Employee" is defined as "any person receiving

salary payments for work performed in a regularly established

position . . ." § 121.021(11), Fla. Stat.

17. Subsection 121.021(52), Florida Statutes, defines a

"regularly established position" for a local agency as: "a

regularly established position which will be in existence for a

period beyond 6 consecutive months, except as provided by rule."

18. Subsection 121.021(53), Florida Statutes, defines a

"temporary position" for a local agency as "an employment

position which will exist for less than 6 consecutive months, or

other employment position as determined by rule of the division,

regardless of whether it will exist for 6 consecutive months or

longer."

19. Florida Administrative Code Rule 60S-1.004(5) reads,

in pertinent part, as follows:

An employee who is filling a temporary

position shall not be eligible for

membership in the Florida Retirement System.

Records documenting the intended length of a

temporary position and the dates of

employment of an employee in such position

must be maintained by the agency. An

employer employing a person in a temporary

position shall advise the employee at the

time of his employment that he is filling a

temporary position and cannot participate in

the Florida Retirement System or claim this

temporary employment later for retirement

purposes . A position shall not be

considered temporary due to the uncertainty

of the employee's intention to continue

employment. A position meeting the

definition below shall be a temporary

position.

* * *

(b) A temporary position in a local

agency is:

1. An employment position which will not

exist beyond 6 consecutive calendar months;

or

2. An employment position which is listed

below in paragraph (d) regardless of whether

it will exist beyond 6 consecutive months.

* * *

(c) When an employment position in a

local agency is extended beyond 6

consecutive calendar months, with the

exception of those listed in paragraph

(d) below, it shall become a regularly

established position for retirement purposes

and the employer shall enroll the current

employee and all subsequent employees

filling the position into the retirement

system and shall begin to make the necessary

contributions on the first day of the

seventh calendar month, or on the first day

of the month following the month in which

the decision is made to extend the position

beyond 6 months, if earlier. When a

temporary position extends beyond 6 months

and there is no documentation substantiating

that the position was originally established

as a temporary position to last for 6 months

or less, the employee filling such position

will be enrolled from the initial date of

employment and retirement contributions

shall be due retroactively to that date.

(d) The following types of positions in a

local agency are considered temporary

positions for retirement purposes.

Documents to support such temporary

positions listed below must be maintained in

the agency's records (see subsection

60S-5.007(2), F.A.C.).

* * *

5. On Call Positions (positions filled by

employees who are called to work

unexpectedly for brief periods and whose

employment ceases when the purpose for being

called is satisfied). [Emphasis added]

20. "Unexpected" is defined by The American Heritage

Dictionary of the American Language , Fourth Edition, 2003, as:

"coming without warning; unforeseen." The Farlex Thesaurus ,

2008, published by Princeton University, lists the following

synonyms, "accidentally, by chance, circumstantially," and

further advises that "unexpectedly" means "in a way that was not

expected; without advanced planning."

21. A preponderance of the evidence demonstrates that

Petitioner was employed for a period greater than six

consecutive months. He was not "called to work unexpectedly for

brief periods" as is typical of non-qualifying "on call

positions." His period of employment was planned and

established to be from 8:00 p.m. to 1:00 a.m., Friday and

Saturday, when required by his employer. Nor did his

"employment cease when the purpose for being called [was]

satisfied." He is expected to be available the following Friday

and Saturday and each Friday and Saturday thereafter. He is

considered an "employee," as contemplated by Subsection

121.021(11), Florida Statutes, and, as a practical matter, has

been filling a "regularly established position" with Brevard

County from December 3, 2005, through the date of the hearing.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Respondent, Department of Management

Services, Division of Retirement, enter a final order finding

that Petitioner, Thomas L. Bright, is eligible for participation

in the Florida Retirement System, while employed by Brevard

County from December 3, 2005, through October 31, 2006.

DONE AND ENTERED this 10th day of October, 2008, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 10th day of October, 2008.

COPIES FURNISHED :

Geoffrey M. Christian, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399-0950

Brian D. Solomon, Esquire

Brian D. Solomon, P.L.

101 East 13th Street

St. Cloud, Florida 34769

Sarabeth Snuggs, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32315-9000

John Brenneis, General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

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.