15-006340 Betty E. New vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Wednesday, April 13, 2016.

Summary: Petitioner failed to prove that she is entitled to membership in the senior management services class for the period of July 1, 2004, through her retirement in 2015.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY E. NEW,

Petitioner,

vs. Case No. 15 - 6340

DEPARTMENT OF MANAGEMENT

SERVICES, DIVISION OF

RETIREMENT,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this cause was held

by video teleconference between sites in St. Peter s burg and

Tallahassee, Florida, on February 1 1 , 2016 , before Linzie F.

Bogan, Administrative Law Judge of the Division of Administrative

Hearings.

APPEARAN CES

For Petitioner: Mark Herron, Esquire

Thomas H. Bateman, Esquire

Messer, Caparello, P.A.

Post Office Box 15579

2618 Centennial Place

Tallahassee, F lorida 32317

For Respondent: Thomas E. Wright, Esquire

Office of the General Counsel

Department of Management Services

Suite 160

4050 Esplanade Way

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner, Betty E. New, is entitled to membership

in the senior management services class (SMSC) of the Florida

Retirement System (FRS) from July 1, 2004, through her retirement

in 2015.

PRELIM INARY STATEMENT

Petitioner was employed by the Board of Commissioners of

Pinellas County as court counsel on February 1, 2002. In this

position, Petitioner was enrolled in the SMSC , effective

September 1, 2003, retroactive to February 1, 2002, at the

req uest of her employer, the Pinellas County Board of

Commissioners. On June 30, 2004, Petitioner's employment with

Pinellas County ceased and she received a payout for unused

leave. On July 1, 2004, Petitioner was hired by the Office of

State Courts as Gen eral Counsel for the 6th Judicial Circuit.

This position was not included in the SMSC of the FRS.

Petitioner contends that for retirement calculation purposes, her

position as general counsel should have been classified as senior

management services from July 1, 2004, through the date of her

retirement in 2015.

In 2015, Petitioner applied for retirement benefits. Upon

receipt of her estimate of benefits statement, Petitioner

requested SMSC credit from July 1, 2004, through her retirement

date. The Divi sion of Retirement (Respondent) denied her

request. The matter was forwarded to the Division of

Administrative Hearings (DOAH) for a disputed - fact hearing.

At the final hearing, Petitioner testified on her own behalf

and presented the testimony of Judg e David Demers. Respondent

presented the testimony of: Beatrize Caballero, human resource

director of the Office of State Courts; Dave Blasewitz, human

resource director of Pinellas County Clerk of Courts; and Stephen

Bardin, benefits administrator, Bure au of Enrollments and

Contributions, who was qualified as an expert in FRS enrollment

matters.

PetitionerÓs Exhibits 1 through 18 were admitted into

evidence. RespondentÓs Exhibits 1 through 6 were also admitted

into evidence.

A Transcript of the dispu ted - fact hearing was filed with

DOAH on February 23, 2016. By agreement of the parties, proposed

recommended orders were filed on March 24, 2016. The Proposed

Recommended Order s were considered in the preparation of this

Recommended Order.

FINDING S OF FA CT

1. Petitioner, on February 1, 2002, was employed by the

Pinellas County Board of Commissioners (Pinellas County) as court

counsel. In her position as court counsel, Petitioner, through

an inter - local agreement, was under the supervision and control

of the c hief j udge of the Sixth Judicial Circuit, but her salary

and benefits were paid by Pinellas County. Specifically as to

benefits, Pinellas County was solely responsible for paying

employer contributions to PetitionerÓs state retirement account.

2. When initially hired as court counsel, the position was

designated in the Regular Class of the FRS.

3. In March of 2003, Pinellas County requested that

PetitionerÓs position be added to the SMSC of the FRS, and the

request was granted by Respondent, r etroactive to her hire date

of February 1, 2002.

4. On June 30, 2004, Petitioner ceased being employed by

Pinellas County and she received a payout of all unused leave,

pursuant to the termination payout rules of Pinellas County.

Additionally, on June 3 0, 2004, Pinellas County ceased being

responsible for making employer contributions to PetitionerÓs

state retirement account.

5. On June 30, 2004, Judge David A. Demers, then chief

judge of the Sixth Judicial Circuit, requested that Petitioner

be paid a $10,000.00 bonus due to the fact that Petitioner would

Ðno longer be a member of the senior management class for

retirement purposes.Ñ The bonus was approved and Petitioner

accepted the same.

6. Effective July 1, 2004, funding for all court system

empl oyees was transferred to the State. Consequently,

Petitioner, on July 1, 2004, was reported to the Division of

Retirement as an employee of the Office of State Courts, in the

Regular Class of the FRS.

7. Petitioner was aware that her position would no l onger

be included in the SMSC at least as early as September 2004, and

chose not to request an opportunity to challenge the

d etermination until several years later.

8. Petitioner asserts that she was continuously an employee

of the Office of State Court s from February 1, 2002, and that she

was never an employee of Pinellas County.

9. Stephen Bardin credibly testified that if Petitioner had

been an employee of the Office of State Courts, rather than of

Pinellas County, her position would never have bee n eligible for

inclusion in the SMSC in 2002.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2015). 1/

11. Petitioner bears the burden of establishing by a

preponderance of the evidence her entitlement to membership in

the SMSC. See Dep't of Banking & Fin., Div. of Sec. & Investor

Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996);

Espinoza v. Dep't of Bus. & Prof'l Re g. , 739 So. 2d 1250, 1250

(Fla. 3d DCA 1999); Fla. Dep't of Transp. v. J.W.C. Co. , 396 So.

2d 778 (Fla. 1st DCA 1981); and § 120.57(1)(j)(ÐFindings of fact

shall be based upon a preponderance of the evidence, except in

penal or licensure disciplinary proce edings or except as

otherwise provided by statute. . . .Ñ).

12. ÐA 'preponderance' of the evidence is defined as 'the

greater weight of the evidence,' or evidence that 'more likely

than not' tends to prove a certain proposition.Ñ Gross v. Lyons ,

763 So. 2d 276, 280 n.1 (Fla. 2000).

13. The Florida Retirement System is codified in chapter

121, Florida Statutes.

14. There are two different FRS membership classes at issue

in the present case , the FRS Regular Class and the Senior

Management Services Clas s.

15. Section 121.091(1) governs the Regular Class, and sets

the retirement credit multiplier at 1.6 percent.

16. Section 121.055 defines the Senior Management Services

Class, and sets the retirement credit multiplier at 2.0 percent.

17. The Divisio n of Retirement, as designated by the

Secretary of the Department of Management Services, is the sole

administrator of the FRS, and is tasked with making all

membership determinations, including membership class.

§ 121.025, Fla. Stat.

18. Section 121.0 55(1) provides, in part, as follows:

(h)1. Except as provided in subparagraph 3.,

effective January 1, 1994, participation in

the Senior Management Service Class shall be

compulsory for the State Courts Administrator

and the Deputy State Courts Administra tors,

the Clerk of the Supreme Court, the Marshal

of the Supreme Court, the Executive Director

of the Justice Administrative Commission, the

capital collateral regional counsel, the

clerks of the district courts of appeals, the

marshals of the district cou rts of appeals,

and the trial court administrator and the

Chief Deputy Court Administrator in each

judicial circuit.

* * *

2. Participation in this class shall be

compulsory, except as provided in

subparagraph 3., for any judicial employee

who holds a position designated for coverage

in the Senior Management Service Class, and

such participation shall continue until the

employee terminates employment in a covered

position.

19. Petitioner contends that section 121.055(1)(h)2.

requires that she be i ncluded in the SMSC after July 1, 2004,

because her employer never changed. However, the record

indicates that, for FRS purposes, her employer did in fact change

on July 1, 2004, from Pinellas County to the Office of State

Courts.

20. A review of sectio n 121.055(1)(h) demonstrates that if

Petitioner was always an employee of the State Courts System, as

she contends, then she would not have been eligible for inclusion

in the SMSC in 2002 because the positions included in the SMSC in

the Office of State Co urts do not include court counsel or

general counsel, either at the state or circuit level.

21. Respondent's position is that Petitioner was initially

employed by Pinellas County, was terminated from that employment

on June 30, 2004, thus ending her SMS C participation, and that

she was a new hire of the Office of State Courts on July 1, 2004,

in the Regular Class. The fact that Petitioner received a leave

payout under the Pinellas County termination of employment rules

supports RespondentÓs position.

2 2. Further, it was well known in 2004 that Petitioner

would not be in an SMSC position after June 30, 2004, and she was

compensated for this loss of SMSC benefits with a $10,000.00

bonus.

23. Petitioner has failed to meet her burden of proving

that she is entitled to SMSC credit from July 1, 2004, through

the date of her retirement in 2015.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Division enter a f inal o rder

denying Petitioner's reques t for SMSC credit from July 1, 2004,

through the date of her retirement in 2015.

DONE AND ENTERED this 13th day of April , 2016 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of April , 2016 .

ENDNOTE

1/ All statutory references are to 2015 Florida Statutes, unless

otherwise indicated.

COPIES FURNISHED:

Thomas E. Wright, Esquire

Office of the General Counsel

Department of Management Services

Suite 160

4050 Esplanade Way

Tallahassee, Flo rida 32399

(eServed)

Thomas H. Bateman, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

(eServed)

Mark Herron, Esquire

Messer, Caparello, P.A.

Post Office Box 15579

2618 Centennial Place

Tallahassee, Florida 32317

(e Served)

Dan Drake, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32315 - 9000

(eServed)

J. Andrew Atkinson, General Counsel

Office of the General Counsel

Department of Management Services

4050 Esplanade Way , Suite 160

Tallahassee, Florida 32399 - 0950

(eServed)

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.