10-008475 Richard L. Duley vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Thursday, December 23, 2010.

Summary: PERC did not reinstate or rescind Petitioner's termination due to elimination of position under Governor's directive as a remedy for agency violation of veteran's preference. Petitioner is not entitled to service credit for FRS.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD L. DULEY , )

)

Petitioner , )

)

vs. ) Case No. 10 - 8475

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT , )

)

Respondent . )

)

R ECOMMENDED ORDER

Pursuant to Notice, a final hearing in this matter was

conducted before Administrative Law Judge Diane Cleavinger,

Division of Administrative Hearings, on October 26, 2010, in

Tallahassee, Florida.

APPEARANCES

For Petitioner: Richard L . Duley, pro se

5432 Pinderton Way

Tallahassee, Florida 32317

For Respondent: Kristin M. Klein, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in this proceedi ng is whether Petitioner is

entitled to retirement service credit for the time period in

which he was not employed with the State of Florida.

PRELIMINARY STATEMENT

In 2009, Petitioner Richard L. Duley, requested a

determination by the Division of Retirem ent (Division) on

whether he was entitled to membership and credit in the Florida

R etirement System (FRS) for the period of June 30, 2005 to

May 30 , 2008. The Division issued a Final Agency Action letter

on December 18, 2009, denying PetitionerÓs request for

membership and service credit. Petitioner disagreed with

RespondentÓs determination and requested a formal hearing before

the Division of Administrative Hearings.

At the hearing, Petitioner testified o n his own behalf and

offere d 30 exhibits into evi dence . Petitioner's E xhibits 1 - 4

were admitted into evidence except for the sections containing

Petitioner's typed comments on the exhibits. Petitioner's

Exhibits 5 - 30 were not admitted into evidence. Respondent

presented the testimony of one witness. Additionally, official

recognition was granted to the Public Employee Relations

Commission (PERC) Hearing OfficerÓs Recommended Order, Richard

L. Duley, Petitioner, v. Department of Transportation,

Respondent , Case No. VP - 2007 - 001, filed February 15, 2008; and

the PERC Final Order of Richard L. Duley, Petitioner v.

Department of T ransportation, Respondent , Case No. VP - 2007 - 001,

issued April 8, 2008.

After the hearing, Petitioner filed a P roposed R ecommended

O rder on November 6, 2010. Likewise, Respondent filed a

P roposed R ecommended O rder on November 5, 2010.

FINDINGS OF FACT

1. The Department of Management Services ( DMS ) is

responsible for the administration of the Florida Retirement

System (FRS) under Chapter 121, Florida Statutes .

2. The Department of Transportation (DOT) is an agency of

the State of Florida whose employees qualify for membership in

FRS.

3. Petitioner Richard L. Duley is an honorably discharged

veteran. He began employment with DOT in 1991. At the same

time, he became a member of FRS.

4 . Prior to 2001, then - Governor Jeb Bush directed state

agencies to reduce their workforce by 25 percent over a five -

year period beginning in 2001. The directive was known as the

"Service First Initiative." In response to the GovernorÓs

directive, DOT developed an Agency Organizational Efficiency

Plan.

5 . On January 18, 2005, Petitioner was notified that his

position was designated to be deleted under the AgencyÓs

Or ganizational Efficiency Plan ; h is positio n was abolished on

June 30, 2005 .

6 . As a result, Petitioner was dismissed from state

employment and was no longer receiving retirement service credit

for FRS. However, Petitioner did not receive a clear point of

entry to challenge either his termination or whether he was

entitled to a veteran' s preference by DOT.

7 . After his dis missal, Petitioner was hired by a private

firm who had contracted with the State to perform the functions

that Mr. Duley had previously provided as an employee of the

state . The contract terminated in June or July of 2007, and was

not renewed. As such, Mr. Duley became unemployed.

8 . On July 30 , 200 7 , Petitioner filed a complaint with the

Department of VeteransÓ Affairs ( DVA) alleging that DOT had

denied him veteranÓs preference in retention during the 2005

layoff. The DVA found that Petitioner's complaint had merit.

On November 19, 2007, Petitioner filed a complaint w ith the

Public Employees Relations Commission (PERC) , which held an

evidentiary hearing on the complaint . PERC is the

administrative body that has jurisdiction to determine issues

and remedies under the veteran ' s preference statute.

9 . In its F inal Order issued April 8, 2007 , PERC found

that Petitioner was an honorably discharged veteran and was

entitled to preferential treatment in employment. PER C also

found that DOT violated the veteranÓs preference law by not

affording Petitioner special consideration in finding

alternative employment after the layoff. As a remedy for its

violation of the veteran's preference law, PERC order ed DOT to

make Petit ioner an offer of employment to an existing position

comparable to that which he held prior to his layoff. PERC also

awarded Petitioner attorneysÓ fees and costs. However, and most

importantly, PERC did not reinstate Petitioner to his former

position bec ause it had been abolished. Similarly, PERC did not

rescind Petitioner's termination. Finally , PERC did not award

back pay or benefits to Petitioner.

1 0 . As a consequence of the Final Order, neither

Petitioner nor DOT paid contributions towards the Reti rement

Systems Trust Fund for the period that Petitioner was not

employed with the State. Additionally, Petitioner was offered

and hired into a new position by DOT and again began to accrue

retirement service credit in FRS when he was hired by DOT in May

of 2008. The PERC Final Order was not appealed and became res

judicata on the issues litigated therein. Therefore, s ince

Petitioner's termination was not rescinded and Petitioner was

not reinstated by PERC and did not pay contributions into FRS,

he is no t entitled to receive credit for the time he was not

employed by the State and this action should be dismissed.

CONCLUSIONS OF LAW

11 . The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fl a . Stat . (2010) .

12. Section 121.011(g), Florida Statutes (2006), governs

credit that can be given to FRS members who have not retired and

have been dismissed from employment. Section 121.01 1(g)1 . and

2 . , Florida Statutes, states:

1. If such dismissal is rescinded by proper

authority or through legal proce edings, the

member is eligible to receive retirement

service credit . . . provided:

a. The dismissal action taken against the

member is determined to be incorrect and i s

negated, the employee is made whole for the

period of the dismissal or any portion

thereof, and employment is reinstated; and

b. The employer pays into the Retirement

System Trust Fund the total required

employer contributions for the period for

which the employee is made whole, plus

interest at 6.5 percent compounded annually

until full payment is made. The employee

shall pay the total employee contributions,

plus interest, if applicable.

2. If the dismissal action is subsequently

changed to a su spension . . . provided the

members employment is reinstated, restoring

the employee - employer relationship, and the

employee pays the total required employer

and employee contributions and complies with

all the requirements in paragraph (e).

(Emphasis add ed.)

13 . Section 121.01 1(g), Florida Statutes, only allows

members who have been dismissed to receive retirement service

credit if their dismissal was rescinded. Alternatively, the

employee can receive retir ement credit if the dismissal i s

changed to a suspension and the required contributions are paid

into the retirement System Trust Fund.

14 . In this case, PetitionerÓs dismissal was not rescinded

and he was not reinstated because his former position no longer

existed. Further, his dismissal was n ot changed to a suspension

by PERC. Additionally, Petitioner was not Ðmade wholeÑ by his

new position because he was not awarded back pay or benefits.

15 . Based on these facts, the conditions have not been met

which would allow Petitioner to receive re tirement service

credit for the period in which he was not employed by the state.

16 . Further, Section 121.021(17)(a), Florida Statutes,

defines Ðcredible serviceÑ as follows:

. . . the sum of his or her past service,

prior service, military service, out - of -

state or non - FRS in - state service, workersÓ

compensation credit, leave - of - absence

credit, and future service allowed within

the provisions of this chapter if all

required contributions have been paid and

all other requirements of this chapter have

been met. (Emphasis added.)

17 . Because no contributions were made on behalf of

Petitioner for the period for which he was not employed with the

State, that time period does not qualify as Ðcredible se rvice.Ñ

Therefore, this action should be dismissed.

R ECOMMENDATION

Based upon the foregoing, Finding of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Department of Management Services, Divisio n of

Retirement, enter a Final Order dismissing this action .

DONE AND ENT ERED this 23r d day of December , 2010 , in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(8 50) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of December , 2010 .

COPIES FURNISHED :

Richard L. Duley

5432 Pinderton Way

Tallahassee, Florida 32317

Larry D. S cott, Esquire

Department of Management Services

Division of Retirement

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399

Kristin M. Klein, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399

Sarabet h Snuggs, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32315 - 9000

John Brenneis, General Co unsel

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 thi s case.