14-002554
Harry Marcus vs.
Department Of Management Services, Division Of Retirement
Status: Closed
Recommended Order on Thursday, August 28, 2014.
Recommended Order on Thursday, August 28, 2014.
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.
- Date
- Proceedings
- PDF:
- Date: 08/28/2014
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 08/21/2014
- Proceedings: Petitioner's Proposed Recommended Order filed (not available for viewing).
- 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: 07/21/2014
- 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: 06/25/2014
- Proceedings: Letter to Judge Schwartz from Harry Marcus regarding issues 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
-
Harry Marcus
Address of Record -
Larry D. Scott, Esquire
Address of Record