17-001816 Tracy Davis vs. State Board Of Administration Status: Closed Recommended Order on Monday, August 14, 2017.

Summary: Petitioner's 2nd election to transfer from the FRS Pension Plan to the Investment Plan is invalid. Petitioner, a teacher, did not work and earn any sick leave or creditable service during the month she made the election and resigned her employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRACY DAVIS,

Petitioner,

vs. Case No. 17 - 1816

STATE BOARD OF ADMINISTRATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administrative Law Judge Darren A.

Schwartz of the Division of Administrative Hearings for final

hearing by video teleconference on May 15, 2017, with sites at

West Palm Beach and Tallahassee, Florida.

APPEARANCES

For Petitioner: Tracy Davis, pro se

3268 Sapphire Road

Lake Worth, Florida 33462

For Respondent: Brian A. Newman, Esquire

Pennington, P.A.

215 South Monroe Street , Second Floor

Tallahassee , Florida 32301

STATEMENT OF THE ISSUE

Whether Petitioner, Tracy Davis (ÐPetitionerÑ) , made a valid

Ð2nd electionÑ to transfer from the Florida Retirement System

(ÐFRSÑ) Pension Plan to the Investment Plan.

PRELIMINARY STATEMENT

By letter dated Novemb er 18, 2016, Respondent, State Board

of Administration (ÐRespondentÑ) , denied PetitionerÓs 2nd

election to transfer from the FRS Pension Plan to the I nvestment

Plan . Dissatisfied with RespondentÓs determination, Petitioner

timely filed a request for an ad ministrative hearing.

Subsequently, the parties participated in an informal hearing

before Respondent. During the informal hearing, it was

determined that there were disputed issues of material fact.

Accordingly, on March 21, 2017, Respondent referred t his matter

to the Division of Administrative Hearings (ÐDOAHÑ) to assign an

Administrative Law Judge to conduct the formal administrative

hearing .

On March 24, 2017, the undersigned issued a Notice of

Hearing , setting this matter for final hearing on May 15, 2017.

The final hearing was held on May 15, 2017, with both parties

present. Petitioner testified on h er own behalf . Respondent

presented the testimony of Mini Watson. In addition, based on

the stipulation of the parties, Respondent offered the

dep ositions of Teri Jensen and Mark Mitchell , in lieu of their

in - person testimony . RespondentÓs Exhibits 1 through 5 and

7 through 16 were received into evidence.

The one - volume final hearing Transcript was filed at DOAH on

July 3, 2017. On July 13, 2 017, Respondent filed a motion

requesting a one - day extension of the deadline to file proposed

recommended orders. On July 14, 2017, the undersigned entered an

Order granting the motion, and requiring the parties to file

their proposed recommended orders by July 14, 2017 . Respondent

timely filed its Proposed Recommended O rder. Petitioner did not

file a proposed recommended order.

Unless otherwise stated , all statutory and rule references

are to the statutes and rules in effect in 2016.

FINDING S OF FAC T

1. Petitioner was employed by the Palm Beach County School

Board (ÐSchool BoardÑ) as a special education teacher for 12 and

one - half years . The School Board is an FRS - participating

employer. By reason of this employment, Petitioner was enrolled

in the FRS Pension Plan.

2. As a teacher with the School Board, Petitioner was

employed for ten months out of the calendar year. She did not

work in the summer s . The last day Petitioner performed any work

for the School Board was June 3, 2016, the last day of classes

for the 2015 - 2016 school year before the summer break.

3. The first day of school for the 2016 - 2017 school year

was Monday, August 8, 2016. Petitioner did not return to work on

August 8, 2016, nor did she work at all during the month of

August 2016.

4. On August 25, 2016, Petitioner submitted a 2nd election

to Respondent requesting to transfer from the FRS Pension Plan to

the Investment Plan.

5. On August 29, 2016, Petitioner resigned her employment

from the School Board.

6. Even t hough Petitioner did not work in August 2016, she

received gross pay from the School Board of $561.29, for the

payroll period of August 6, 2016 , through August 19, 2016.

7. This pay was for 30 hours of Ðup - frontedÑ sick leave

(7.5 hours per day x 4 days ) , which Petitioner was credited for

the first week of the pay period at the beginning of the 2016 -

2017 school year .

8 . S ick leave for the School BoardÓs teachers is governed

by a collective bargaining agreement. ÐSection B - Specific Paid

Leaves,Ñ on pag e 93 of the agreement, provides in pertinent part:

1. Sick Leave Ï sick leave claims shall be

honored as submitted by the employee for

his/her own personal illness . . . . Sick

leave days are accumulated as follows:

a. Permanent Full - Time Employees Ï An employee

employed on a full - time basis shall be

entitled to four (4) days of sick leave as of

the first day of permanent employment of each

appointive year, and shall thereafter earn

one (1) day of sick leave at the end of each

calendar month; provided th e employee has

been on duty or compensable leave a minimum

of eleven (11) days within the month; and

provided further, that the employee shall be

entitled to earn a maximum of one (1) day of

sick leave times the number of months of

employment during the ye ar of employment.

Sick leave shall not be used prior to the

time it is earned and credited to the

employee.

9 . Petitioner was mistakenly paid in August 2016 for sick

leave she had not earned. Petitioner did not earn any sick leave

or creditable servi ce for the month of August 2016, or any month

thereafter. Petitioner could not have earned 30 hours of paid

sick leave in August 2016, because she was not on duty or

compensable leave a minimum of 11 days within the month.

10 . The School Board demand ed repayment of the wages

Petitioner was mistakenly paid for August 6 through 19, 2016,

after it was determined that she had not earned the sick leave

she was paid. These wages were recouped from a bonus Petitioner

was to receive for work performed during the 2015 - 2016 school

year.

1 1 . In sum, PetitionerÓs 2nd election is invalid because

she did not work and earn any sick leave or creditable service

for the month of August 2016.

CONCLUSIONS OF LAW

1 2 . DOAH has jurisdiction of the parties and subject matter

of this proceeding pursuant to sections 120.569 and 120.57(1),

Florida Statutes (2016).

1 3 . Petitioner bears the burden of proving the validity of

the 2nd election. Wilson v. DepÓt of Admin., Div. of Ret. , 538

So. 2d 139, 141 - 42 (Fla. 4th DCA 198 9).

1 4 ansfers from the FRS Pension Plan to the Investment

Plan are governed by section 121.4501(4)(g), Florida Statutes,

which provides as follows:

(g) After the period during which an

eligible employee had the choice to elect the

pension plan or the investment plan, or the

month following the receipt of the eligible

employeeÓs plan election, if sooner, the

employee shall have one opportunity, at the

employeeÓs discretion, to choose to move from

the pension plan to the investment plan or

from the investment plan to the pension plan.

Eligible employees may elect to move between

plans only if they are earning service credit

in an employer - employee relationship

consistent with s. 121.021 (17)(b), excluding

leaves of absence without pay. Effective

July 1, 2005, such elections are effective on

the first day of the month following the

receipt of the election by the third - party

administrator and are not subject to the

requirements regarding an employer - employee

relationship or receipt of contributions for

the eligible employee in the effective month,

except when the election is received by the

third - party administrator. This paragraph is

contingent upon approval by the Internal

Revenue Service.

1 5 . Pursuant to section 121.021(17)(b)4., monthly service

credit is awarded Ðfor each month salary is paid for service

performed.Ñ

1 6 . Florida Administrative Code Rule 19 - 11.007(2),

applicable at the time of PetitionerÓs request, further provides:

(2) A member may make a valid 2nd election

only if the 2nd elec tion is made and

processed by the Plan Choice Administrator

while the member is actively employed and

earning salary and service credit in an

employer - employee relationship consistent

with the requirements of Section

121.021(17)(b), F.S. Members on an unp aid

leave of absence, terminated members, or

employees of an educational institution on

summer break cannot use their 2nd election

until they return to covered FRS employment.

In general terms, this means that the 2nd

election must be made and processed w hile the

member is actively working and being paid for

that work. It is the responsibility of the

member to assure that the 2nd election is

received by the Plan Choice Administrator no

later than 4:00 p.m. (Eastern Time) on the

last business day the membe r is earning

salary and service credit.

1 7 . As detailed above, Petitioner did not return to work

after June 3, 2016. Accordingly, Petitioner was not entitled to

earn sick leave during the month of August 2016, and she did not

receive creditable se rvice in August 2016. Petit ioner failed to

meet her burden to establish that her 2nd election is valid, and

she is not entitled to transfer from the FRS Pension Plan to the

Investment Plan. 1/

RECOMMENDATION

Based on the foregoing Findings of Fact and Con clusions of

Law, it is RECOMMENDED that Respondent, State Board of

Administration, enter a f inal o rder denying PetitionerÓs request

to transfer from the FRS Pension Plan to the Investment Plan.

DONE AND ENTERED this 14th day of August , 2017 , in

Tallahasse e, Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 68 47

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of August , 2017 .

ENDNOTE

1/ Rule 19 - 11.007 was amended effective April 12, 2017. The

prior version of the rule applies to this proceeding .

Neverthel ess, under either version, Petitioner Ós 2nd election is

invalid .

COPIES FURNISHED:

Tracy Davis

3268 Sapphire Road

Lake Worth, Florida 33462

Brian A. Newman, Esquire

Pennington, P.A.

215 South Monroe Street , Second Floor

Tallahassee, Florida 32301

(eServed)

As h Williams, Executive Director and

Chief Investment Officer

State Board o f A dministration

1801 Hermitage Boulevard, Suite 100

Post Office Box 13300

Tallahassee, Florida 32317 - 3300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties ha ve 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.