10-001255 Sheridan Chester vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Wednesday, August 11, 2010.

Summary: Teacher who taught only as temporary and a substitute teacher is not eligible for Florida Retirement Service benefits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHERIDAN CHESTER, )

)

Petitioner, )

)

vs. ) Case No. 10-1255

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on June 23, 2010. The ALJ conducted the hearing

by video teleconference in Tallahassee and Fort Myers, Florida.

APPEARANCES

For Petitioner: Jane Marie Letwin, Esquire

The Law Office of Jane M. Letwin

7333 Coral Way, Suite C

Miami, Florida 33155

For Respondent: Thomas E. Wright, Esquire

Department of Management Services

Division of Retirement

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue is whether Petitioner is eligible to participate

in the Florida Retirement System (FRS), within the meaning of

Subsection 121.021(17)(a), Florida Statutes (2009), 1 as a

substitute teacher for the Lee County School Board.

PRELIMINARY STATEMENT

By letter dated March 20, 2009, Respondent advised

Petitioner that she is not eligible to participate in the

Florida Retirement System (FRS) for the period of her employment

as a teacher from February 28, 2001, through the present. The

basis for the denial is that her employment was in a temporary

position. Petitioner requested a final hearing before DOAH.

At the hearing, Petitioner testified, called one witness,

and submitted 12 exhibits for admission into evidence.

Respondent presented the testimony of three witnesses and

submitted five exhibits for admission into evidence.

The identity of the witnesses and exhibits and the rulings

regarding each are reported in the Transcript of the hearing

filed with DOAH on July 2, 2010. Petitioner and Respondent

timely filed their respective Proposed Recommended Orders on

July 21 and 19, 2010.

FINDINGS OF FACT

1. Petitioner has been an employee of the Lee County

School Board (the School Board) from February 28, 2001, through

the date of the final hearing. The School Board is a

participating member in the FRS.

2. Petitioner has never been a full-time employee of the

School Board and has never been eligible for service credits for

purposes of the FRS. From February 28, 2001, until some time in

May 2004, the School Board employed Petitioner in a temporary,

part-time position. From some time in May 2004 through the date

of the final hearing, the School Board has employed Petitioner

as a substitute teacher.

3. From February 28, 2001, through some time in May 2004,

the School Board required part-time employees such as Petitioner

to participate in a plan identified in the record as the Bencor

FICA Alternative Plan (the Bencor Plan). The Bencor Plan

provided retirement benefits for temporary teachers, who were

not eligible for FRS retirement benefits.

4. On May 25, 2004, Petitioner submitted a Distribution

Request Form to withdraw her accumulated savings from the Bencor

Plan. Petitioner was eligible to withdraw her retirement

benefits from the Bencor Plan, because she changed her

employment status from a temporary teacher to a substitute

teacher.

5. Some time in May 2004, Petitioner began teaching as a

substitute teacher for the School Board. Petitioner has

continued as a substitute teacher for the School Board through

the date of the final hearing. As a substitute teacher,

Petitioner is not a full-time employee, who is eligible for

service credits for purposes of the FRS.

CONCLUSIONS OF LAW

6. Petitioner argues that Respondent is equitably estopped

from denying FRS benefits to Petitioner. Equity is the

exclusive province of the courts in Florida. Art. V, Fla.

Const. Neither DOAH nor its ALJs constitute a court with

equitable jurisdiction. See Florida Department of Revenue v.

WHI Limited Partnership, d/b/a Wyndham Harbor Island Hotel , 754

So. 2d 205, 206 (Fla. 1st DCA 2000); Florida State University v.

Hatton , 672 So. 2d 576, 579 (Fla. 1st DCA 1996). Cf. Maddonna

Sue Jervis Wise v. Department of Management Services, Division

of Retirement , 930 So. 2d 867 (Fla. 2d DCA 2006). 2

7. The jurisdiction of DOAH with respect to Petitioner's

equitable estoppel argument is limited to relevant findings of

in the Findings of Fact, a preponderance of the evidence does

not show that Respondent misrepresented that Petitioner was

eligible to receive FRS benefits.

8. DOAH has jurisdiction over the remaining subject matter

and the parties in this proceeding pursuant to Section 120.569

and Subsection 120.57(1). DOAH provided the parties with

adequate notice of the final hearing.

9. Petitioner has the burden of proving by a preponderance

of the evidence that she is entitled to FRS benefits. See

§§ 120.57(1)(j) and (k); Young v. Dept. of Community Affairs ,

625 So. 2d 831 (Fla. 1993); Florida Dept. of Transportation v.

J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v.

Dept. of Health and Rehabilitative Services , 348 So. 2d 349

(Fla. 1st DCA 1977). For reasons stated in the Findings of Fact

and not repeated here, Petitioner did not satisfy her burden of

proof.

10. A preponderance of evidence does not show that

Petitioner was ever employed in a regularly-established position

within the meaning of Subsection 121.021(52)(b). Rather, a

preponderance of the evidence shows that Petitioner was always

employed in a temporary position defined in Subsection

121.021(53)(b) or in a substitute teacher position defined in

Florida Administrative Code Rule 60S-1.004(5)(b)4.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Department of Management

Services, Division of Retirement, enter a final order denying

Petitioner's request for FRS benefits.

DONE AND ENTERED this 11th day of August, 2010, 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

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of August, 2010.

ENDNOTES

1/ References to subsections, sections, and chapters are to

Florida Statutes (2009), unless otherwise stated.

2/ The Recommended Order issued by this ALJ in the Wise case, in

relevant part, applied the doctrine of equitable estoppel

without first considering the constitutional authority of an

ALJ, as an officer of an executive branch agency, to exercise

equitable powers. See Madonna Sue Jervis Wise v. Department of

Management Services, Division of Retirement , Case No. 04-4020

(March 25, 2005). The constitutional limits on the executive

agency, if any, were cured in the grant of equitable relief by

the appellate court, which has plenary constitutional authority

to grant such relief, but upheld the equitable relief granted by

the ALJ without addressing the underlying constitutional

question because the constitutional issue was not raised by

either the ALJ or the parties in the administrative hearing.

Wise , 930 So. 2d at 873.

COPIES FURNISHED :

Thomas E. Wright, Esquire

Department of Management Services

Division of Retirement

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399

Jane Marie Letwin, Esquire

The Law Office of Jane M. Letwin

7333 Coral Way, Suite C

Miami, Florida 33155

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.