14-002554 Harry Marcus vs. Department Of Management Services, Division Of Retirement
 Status: Closed
Recommended Order on Thursday, August 28, 2014.


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Summary: Petitioner failed to prove by a preponderance of the evidence that he is entitled to creditable service based on his employment with the School Board, because the position he held was that of a part-time, temporary, vocational education instructor.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8HARRY MARCUS ,

10Petitioner ,

11vs. Case No. 1 4 - 2554

18DEPARTMENT OF MANAGEMENT

21SERVICES, DIVISION OF

24RETIREMENT ,

25Respondent .

27/

28RECOMMENDED ORD ER

31This case came before Administrative Law Judge Darren A.

40Schwartz for final hearing by video teleconference on July 31 ,

502014 , with sites at Lauderdale Lakes and Tallahassee , Florida.

59APPEARANCES

60For Petitioner: Harry Marcus, pro se

668 31 Cumberland Terrace

70Davie, Florida 33325 - 1236

75For Respondent: Larry D. Scott, Esquire

81Department of Management Services

854050 Esplanade Way , Suite 160

90Tallahassee, Flor ida 32399

94STATEMENT OF THE ISSUE S

99W hether Petitioner , Harry Marcus ( Ð Petitioner Ñ ) , timely

110claimed creditable service for retirement benefits pursuant to

118section 121.085, Florida Statutes , and whether the adult

126education teacher position Petitioner held , for which he seeks

135creditable service for retirement benefits , was a temporary

143position .

145PRELIMINARY STATEMENT

147On February 20, 2014 , Respondent , Department of Management

155Services, Division of Retirement (ÐRespondentÑ), issued a final

163agency action le tter to Petitioner, informing Petitioner that his

173request for creditable service for retirement benefits was

181denied , because the position he held for which he seeks

191creditable service was a temporary position. Dissatisfied with

199RespondentÓs determination, Petitioner timely filed a request for

207an administrative hearing.

210On April 23, 2014 , Respondent issued a supplemental final

219agency action letter to Petitioner, informing Petitioner that

227his request for creditable service was denied because his reques t

238was untim ely pursuant to section 121.085 . Respondent stated in

249its April 23, 2014, letter that it was placing Ðits February 20,

2612014 final agency action letter into abatement until the issue

271presented in this supplemental final agency action letter is

280d etermined.Ñ Dissatisfied with RespondentÓs determination as set

288forth in the April 23, 2014, letter , Petitioner timely filed a

299second request for an administrative hearing. Furthermore, in

307his second request for an administrative hearing, Petitioner

315spec ifically requested that Ðthe abatement be lifted and a

325hearing date be set.Ñ

329On May 30, 2014, Respondent referred this matter to the

339Division of Administrative Hearings ( Ð DOAH Ñ ) to assign an

351Administrative Law Judge to conduct the final hearing.

359On June 5, 2014, the undersigned issued a Notice of Hearing

370by Video Teleconference (ÐNoticeÑ), setting this matter for final

379hearing on July 31, 2014. The N otice states the issue as

391follows: ÐWhether Petitioner timely claimed creditable service

398pursuant t o section 121.085, Florida Statutes.Ñ

405On July 29, 2014, a telephonic pre - hearing conference was

416held with the parties. During the conference, the parties agreed

426to go forward with the hearing on July 31, 2014, and that the

439hearing would involve both issu es of whether Petitioner timely

449claimed creditable service pursuant to section 121.085, and

457whether the adult education teacher position Petitioner held , for

466which he seeks creditable service for retirement benefits , was a

476temporary position. 1/

479At the fin al hearing, Petitioner testified on his own

489behalf, and PetitionerÓs Exhibits 1, 3, 4, 6, 7, 12, and 14

501through 16 were received into evidence. Respondent presented the

510testimony of Petitioner, Ronley Alexander, Stephen Bardin, and

518Joyce Morgan , 2 / and Res pondentÓs Composite Exhibits 1 through 8

530were received in to evidence. At the hearing, the undersigned

540granted RespondentÓs request for official recogn ition of the

549following Florida S tatutes and rules of the Florida

558Administrative Code: s ections 121.021(1 1), 121.021(52)(b),

565121.0 21(53)(b), 121.193, and 121.085 ; and Florida Administrative

573Code Rules 60S - 1.002 and 1.004 .

581The final hearing was recorded , but no transcript was filed.

591At the conclusion of the final hearing, the parties agreed that

602their pro posed recommended orders would be filed by August 20,

6132014. Respondent timely filed a P roposed R ecommended O rder,

624which was given consideration in the preparation of this

633Recommended Order. Petitioner filed a P roposed Recommended O rder

643on August 21, 2014 , one day late . Nevertheless, PetitionerÓs

653Proposed Recommended Order was given consideration in the

661preparation of this Recommended Order.

666FINDING S OF FAC T

6711. The Florida Retirement System (ÐFRSÑ) is a public

680retirement system as defined by Flori da law. Respondent is

690charged with managing, governing, and administering the FRS .

6992. On February 12, 1979, Petitioner began employment with

708the Florida Department of Labor & Employment Security (ÐFDLESÑ),

717an FRS - participating employer. By reason of this employment,

727Petitioner was enrolled in the FRS, and FDLES made contributions

737to the FRS on his behalf .

7443. On January 4, 1991, Petitioner voluntarily resigned his

753employment with FDLES. At that time, Petitioner had 11 years and

76411 months c reditable service with FRS based on his employment

775with FDLES.

7774. On January 23, 1991, Petitioner submitted a Florida

786Retirement System Application f or Service Retirement to the State

796of Florida, Department of Administration, Division of Retireme nt

805(ÐDOA Division of RetirementÑ) . 3/

8115. On February 28, 1991, Petitioner submitted a request to

821the DOA Division of Retirement, that his application for service

831retirement be withdrawn . On March 12, 1991, the DOA Division of

843Retirement canceled Pe titionerÓs application for service

850retirement . At that time, the DOA Division of Retirement advised

861Petitioner that:

863Your retirement date will be the first of the

872month following your termination date if your

879retirement application is received by us

885with in 30 days after your termination date.

893If the application is received after the 30

901days, your retirement date will be the first

909o f the month following the month we receive

918it.

9196. On September 27, 1993, Petitioner began employment with

928the Browar d County, Florida , School Board (ÐSchool BoardÑ) as a

939part - time, temporary, adult vocational education instructor at

948Ð Whispering Pines . Ñ Whispering Pines is an Ðoff - campusÑ adult

961education program. The School Board is an FRS - participating

971employer.

9727. Petitioner was employed by the School Board f rom

982September 27, 19 93 , until April 2009 , when he voluntarily

992resigned his employment with the School Board .

10008. T hroughout PetitionerÓs entire employment with the

1008School Board , he was compensated o n an hourly basi s and held the

1022same position , that of a part - time, temporary, adult vocational

1033education instructor .

10369. Each school year throughout his employment with the

1045School Board, Petitioner signed an Agreement f or Part - Time

1056Instructio n in Vocational, Adult a nd Community Education. By

1066signing the agreement, Petitioner acknowledged that his

1073employment was part - time, temporary, and subject to School Board

1084Policy 6Gx6 - 4107. Each of t he agreements for part - time

1097instruction that Petitioner sign ed, provided that:

1104THE ADMINISTRATOR MAY TERMINATE THIS

1109AGREEMENT UPON NOTICE. This appointment is

1115contingent upon sufficient enrollment and

1120attendance in the course assigned or the

1127class will be cancelled and this agreement

1134shall be null and void.

1139Th e instructorÓs signature below indicates

1145acceptance of the appointment subject to all

1152terms and conditions of Board Policy 6Gx6 -

11604107 which is printed on the reverse side of

1169this agreement.

1171* * *

1174THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA

11816Gx6 - 4107 6Gx6 - 4107

1187PART - TIME, TEMPORARY INSTRUCTIONAL PERSONNEL

1193IN VOCATIONAL, ADULT, AND COMMUNITY EDUCATION

1199PROGRAMS

1200EMPLOYMENT OF PART - TIME, TEMPORARY

1206INSTRUCTIONAL PERSONNEL IN VOCATIONAL, ADULT,

1211AND COMMUNITY EDUCATION PROGRAMS SHALL BE

1217APPROVED, ASSIGNED AND PAID IN ACCORDANCE

1223WITH THE RULES.

1226AUTHORITY: F.S. 230.22(1)(2)

1229Policy Adopted: 5/3/84

1232Rules

12331 . The conditions of employment listed

1240herein apply only to those instructional

1246personnel employed on a part - time, temporary

1254basis to teach courses on a course by course

1263basis or to provide part - time instructional

1271support to programs in post - secondary adult

1279vocational education, adult genera l

1284education, C ommunity Instructional Services,

1289and education for personal improvement.

12942 . Part - time, temporary teachers shall have

1303no guarantee or expectation of continued

1309employment and may be terminated upon written

1316notice by the location administrator.

13213 . A part - time, temporary employee must meet

1331the same employment criteria as full - t ime

1340employees with the exception that full - time

1348or part - time teaching certificates may be

1356accepted. Community Instructional Services

1360and Education for Personal Improvement

1365teachers need not be certified. The

1371superintendent is authorized to appoint

1376person nel to positions covered by this policy

1384pending action by the School Board at its

1392next regular or special Board meeting.

13984 . The principal (or administrative

1404designee) shall recommend for employment only

1410persons who have completed all requirements

1416for th e recommended position. Instructors

1422appointed to teach courses requiring

1427certification who are approved on an Ðapplied

1434forÑ status must file a valid Florida

1441TeacherÓs Certificate not later than ninety

1447(90) days from the date of employment.

1454Failure to pro vide such certificate within

1461the specified time may result in [ re s cis s ion ]

1474of the appointment.

14775 . Part - time, temporary teachers shall be

1486paid an hourly salary based upon the Salary

1494Schedule adopted for part - time temporary

1501employees.

15026 . Part - time teac hing experience cannot be

1512used toward experience credit on the full -

1520time Teacher Salary Schedule.

15247 . Part - time, temporary teachers shall not

1533be eligible for a continuing contract or for

1541a Professional Service Contract and are not

1548entitled to fringe bene fits.

15531 0 . As a part - time, t emporary employee, Peti tioner did not

1568hold a regularly - established position with the School Board.

1578PetitionerÓs employment with the School Board was t erm - to - term ,

1591and he had no expectation of continued employment . Beca use

1602Petitioner held a temporary position, he is n ot eligible for

1613service credit in the FRS based on his employment with the School

1625Board .

162711 . Even though Petitioner is not entitled to eligible

1637service credit in the FRS based on his employment wit h the School

1650Board, he is eligible to participate in the FICA Alternative

1660Plan, which is separate and distinct from the FRS.

16691 2 . The FICA Alternative Plan is designed for individuals,

1680such as Petitione r, who held temporary positions and , therefore,

1690are ineligible for service credit in the FRS. Petitioner

1699participated in the FICA Alternative Plan through his employment

1708with the School Board. As a participant in the FICA Alternative

1719Plan, Petitioner contributed to the plan, the School Board did

1729not contr ibute to the plan, and Petitioner was prohibited from

1740participating in the FRS.

17441 3 . In 2008, Petitioner requested that Respondent review

1754his service with the School Board to determine if he is eligible

1766for coverage under the FRS based on his empl oyment with the

1778School Board. On June 23, 2008, Respondent informed Petitioner

1787that he is not eligible for creditable service based on the fact

1799that he was employed by the School Board as a part - time,

1812temporary employee. No clear point - of - entry was provi ded by

1825Respondent at that time for Petitioner to institute formal

1834proceedings to challenge the decision.

18391 4 . On March 9, 2009, Petitioner submitted a Florida

1850Retirement S ystem Pension Plan Application f or Service Retirement

1860to Respondent. On March 11, 2009, Respondent wrote to Petitioner

1870acknowledging the receipt of his service retirement application,

1878and an effective retirement date of April 1, 2009. Respondent

1888also provided Petitioner with an estimate of retirement benefits,

1897which is based on an employment termination date of January 4,

19081991 , and PetitionerÓs 11.91 years of service with FDLES .

191815. Subsequently, Petitioner was added to the retirement

1926payroll effective April 2009 , and he has received monthly

1935retirement benefits based on his 11 yea rs and 11 months of

1947service with FDLES.

19501 6 . The evidence adduced at the final hearing established

1961that Petitioner timely claimed creditable service for retirement

1969benef its pursuant to section 121.085 . Petitioner first sought

1979creditable service for reti rement benefits in 2008, based on his

1990employment with the School Board. However, Petitioner did not

1999retire from the School Board until 2009.

20061 7 . Nevertheless, Petitioner is not eligible for creditable

2016service for his years of employment with the Schoo l Board because

2028his employment with t he School Board was in the part - time,

2041temporary position of an adult vocational education instructor .

2050C ONCLUSIONS OF LAW

20541 8 . DOAH has personal and subject matter jurisdiction in

2065this proceeding pursuant to sections 1 20.569 and 120.57(1),

2074Florida Statutes ( 2014) .

20791 9 . Petitioner has the burden of proving by a preponderance

2091of the evidence that he is e ntitled to creditable service under

2103the FRS. Wilson v. DepÓt of Admin., Div. of Ret. , 538 So. 2d

2116139, 141 - 42 (Fla. 4t h DCA 1989).

212520 . Respondent admini sters the FRS as authorized in

2135c hapter 121, Florida Statutes, and the rules promulgated in

2145Florida Administrative Code Chapter 60S. 4 /

215221 . Rule 60S - 1.002(2) , effective September 17, 2003,

2162provides:

2163The Division shall deny membership to any

2170officer or employee who does not meet the

2178requirements for membership in the Florida

2184Retirement System as set forth in Chapter

2191121, F.S., and these rules.

219622 . Section 121.021(11), Florida Statutes (20 08 ), defines

2206ÐemployeeÑ as:

2208(11) ÐOfficer or employeeÑ means any person

2215receiving salary payments for work performed

2221in a regularly established position and, if

2228employed by a city , a metropolitan planning

2235organization, or a special district, employed

2241in a covered group.

22452 3 . Section 121.021(52)(b), Florida Statutes (20 08 ),

2255defines a Ðregularly established positionÑ as follows :

2263(52) ÐRegularly established positionÑ is

2268defined as follows :

2272(b) In a l ocal agency ( district school

2281board, county agency, community college,

2286city, metropolitan planning organization, or

2291special district) , the term means a regularly

2298e stablished position which will be in

2305existence for a period beyond 6 consecutive

2312months, except as provided by rule.

231824 . Section 121.021(53)(b), Florida St atutes (20 08 ),

2328defines a Ðtemporary positionÑ as follows:

2334(53) ÐTemporary positionÑ is defined as

2340follows :

2342(b) In a local agency , the term means an

2351employment position which will exist for less

2358than 6 consecutive months, or other position

2365as determine d by rule of the division,

2373regardless of whether it will exist for 6

2381consecutive months or longer.

238525 . As authorized by sections 121.021(52)(b) and (53)(b),

2394the Division has defined Ðtemporary positionÑ in r ule 60S -

24051.004(5), effective January 1, 20 06, which provides, in relevant

2415part:

2416(5) An employee who is filling a temporary

2424position shall not be eligible for membership

2431in the Florida Retirement System. Records

2437documenting the intended length of a

2443temporary position and the dates of

2449employment of an employee in such position

2456must be maintained by the agency. An

2463employer employing a person in a temporary

2470position shall advise the employee at the

2477time of his employment that he is filling a

2486temporary position and cannot participate in

2492the Florida Retirement System or claim this

2499temporary employment later for retirement

2504purposes. A position shall not be considered

2511temporary due to the uncertainty of the

2518employeeÓs intention to continue employment.

2523A position meeting the definition below shall

2530be a temporary position.

2534* * *

2537( b) A temporary position in a local agency

2546is :

25481. An employment position which will not

2555exist beyond 6 consecutive calendar months;

2561or

25622. An employment position which is listed

2569below in paragraph (d) regardless of whether

2576it will exist beyond 6 consecutive months.

2583* * *

2586(d) The following types of positions in a

2594local agency are considered temporary

2599positions for retirement purposes. Documents

2604to support such temporary positions listed

2610below must b e maintained in the agencyÓs

2618records (see subsection 60S - 5.007(2),

2624F.A.C.) .

2626* * *

26293. Temporary Instructional Positions

2633(positions which are established with no

2639expectation of continuation beyond one

2644semester or one trimester at a time, to teach

2653i n a community college, public school, or

2661vocational institution; effective July 1,

26661991, such positions may include paper

2672graders, tutors, notetakers, and lab tutors

2678at community colleges).

268126 . Section 121.085, Florida Statutes (2008), provides , in

2690pertinent part:

2692(1) The department shall adopt rules

2698establishing procedures for the submission of

2704evidence or information necessary to

2709establish a memberÓs claim of creditable

2715service.

2716(2) No creditable service which remained

2722unclaimed at retiremen t may be claimed or

2730purchased after a retirement benefit has been

2737cashed or deposited.

274027 . Turning to the instant case, Petitioner proved by a

2751preponderance of the evidence that he timely made a claim to

2762Respondent for creditable service in 200 8, prior to his

2772retirement. In 2008, Petitioner wrote to Respondent, seeking to

2781establish that he is entitled to creditable service based on his

2792employment with the School Board. In response to PetitionerÓs

2801request, Respondent wrote to Petitioner advisin g him that he is

2812not entitled to creditable service based on his employment with

2822the School Board, because he is a temporary, part - time employee .

283528 . However, even though Petitioner timely claimed

2843creditable service, he did not prove, by a preponde rance of the

2855evidence, that he is entitled to creditable service based on his

2866employment with the School Board. Throughout the entire course

2875of PetitionerÓs employment with the School Board, Petitioner held

2884the same position of a part - time, temporary, voc ational education

2896instructor. Petitioner had no expectation of continued

2903employment , and he knew his employment was temporary. At no time

2914during his employment with the School Board did Petitioner hold a

2925regularly - established position.

2929RECOMMENDATI ON

2931Based on the foregoing Findings of Fact and Conclusions of

2941Law, it is RECOMMENDED that a final order be entered by the

2953Department of Management Services, Division of Retirement,

2960concluding that Petitioner is not eligible for creditable service

2969for his e mployment with the School Board .

2978DONE AND ENTERED this 28 th day of August , 2014 , in

2989Tallahassee, Leon County, Florida.

2993S

2994DARREN A. SCHWARTZ

2997Administrative Law Judge

3000Division of Administrative Hearings

3004The DeSoto Build ing

30081230 Apalachee Parkway

3011Tallahassee, Florida 32399 - 3060

3016(850) 488 - 9675

3020Fax Filing (850) 921 - 6847

3026www.doah.state.fl.us

3027Filed with the Clerk of the

3033Division of Administrative Hearings

3037this 28th day of August , 2014 .

3044ENDNOTES

30451/ During the conference, t he undersigned inquired whether either

3055party wished to have the final hearing continued. Both parties

3065expressed their intent to go forward with the final hearing on

3076July 31, 2014 , as indicated above .

30832/ The testimony of Ms. Morgan was off ered by deposition. The

3095deposition transcript and accompanying exhibits were received

3102into evidence at the hearing as RespondentÓs Composite Exhibit 8.

3112The deposition transcript shows that Ms. Morgan was unavailable

3121for the hearing .

31253 / At that time, the Division of Retirement was a division with

3138the Florida Department of Administration .

31444 / The applicable rules and statutes are those in effect in April

31572009 when Petitioner retired his employment with the School

3166Board. Unless otherwise indicated, al l references to the

3175statutes and rules are to those in effect in April 2009.

3186COPIES FURNISHED:

3188Harry Marcus

3190831 Cumberland Terrace

3193Davie, Florida 33325

3196Larry D. Scott, Esquire

3200Department of Management Services

32044050 Esplanade Way, Suite 160

3209Tallahas see, Florida 32399

3213(eServed)

3214Bruce Conroy, Interim General Counsel

3219Office of the General Counsel

3224Department of Management Services

32284050 Esplanade Way, Suite 160

3233Tallahassee, Florida 32399 - 0950

3238(eServed)

3239Dan Drake, Director

3242Division of Retirement

3245Depart ment of Management Services

3250Post Office Box 9000

3254Tallahassee, Florida 32315 - 9000

3259(eServed)

3260NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

3266All parties have the right to submit written exceptions within

327615 days from the date of this Recommended Order. Any excepti ons

3288to this Recommended Order should be filed with the agency that

3299will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 10/15/2014
Proceedings: Agency Final Order
PDF:
Date: 10/15/2014
Proceedings: Agency Final Order filed.
PDF:
Date: 08/28/2014
Proceedings: Recommended Order
PDF:
Date: 08/28/2014
Proceedings: Recommended Order (hearing held July 31, 2014). CASE CLOSED.
PDF:
Date: 08/28/2014
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 08/21/2014
Proceedings: Notice of Ex-parte Communication.
Date: 08/21/2014
Proceedings: Petitioner's Proposed Recommended Order filed (not available for viewing).
PDF:
Date: 08/20/2014
Proceedings: Respondent's Proposed Recommended Order filed.
Date: 07/31/2014
Proceedings: CASE STATUS: Hearing Held.
Date: 07/29/2014
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
Date: 07/23/2014
Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 07/23/2014
Proceedings: Respondent's Amended Notice of Filing (Proposed) Exhibits filed.
PDF:
Date: 07/23/2014
Proceedings: Respondent's Notice of Filing (Proposed) Exhibits filed.
PDF:
Date: 07/23/2014
Proceedings: Respondent's Notice of Filing Witness List filed.
PDF:
Date: 07/23/2014
Proceedings: Respondent's Motion for Official Recognition filed.
PDF:
Date: 07/22/2014
Proceedings: Notice of Ex-parte Communication.
PDF:
Date: 07/21/2014
Proceedings: Notice of Filing (Petitioner's Proposed Exhitbits) (exhibits not available for vewing).
PDF:
Date: 06/27/2014
Proceedings: Respondent's Notice of Taking Deposition (of Joyce Morgan) filed.
PDF:
Date: 06/26/2014
Proceedings: Notice of Ex-parte Communication.
PDF:
Date: 06/25/2014
Proceedings: Letter to Judge Schwartz from Harry Marcus regarding issues filed.
PDF:
Date: 06/05/2014
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 06/05/2014
Proceedings: Notice of Hearing by Video Teleconference (hearing set for July 31, 2014; 9:00 a.m.; Lauderdale Lakes and Tallahassee, FL).
PDF:
Date: 06/03/2014
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 05/30/2014
Proceedings: Initial Order.
PDF:
Date: 05/30/2014
Proceedings: Agency action letter filed.
PDF:
Date: 05/30/2014
Proceedings: Request for Administrative Hearing filed.
PDF:
Date: 05/30/2014
Proceedings: Agency referral filed.

Case Information

Judge:
DARREN A. SCHWARTZ
Date Filed:
05/30/2014
Date Assignment:
05/30/2014
Last Docket Entry:
10/15/2014
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (5):

Related Florida Rule(s) (3):