90-002424
Albert A. Moss vs.
Division Of Retirement
Status: Closed
Recommended Order on Friday, September 28, 1990.
Recommended Order on Friday, September 28, 1990.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8ALBERT A. MOSS, )
12)
13Petitioner, )
15)
16vs. ) CASE NO. 90-2424
21)
22STATE OF FLORIDA, DEPARTMENT OF )
28ADMINISTRATION, DIVISION OF RETIREMENT, )
33)
34Respondent. )
36________________________________________)
37RECOMMENDED ORDER
39The final hearing in the above-styled matter was heard
48pursuant to notice by Stephen F. Dean, assigned Hearing Officer
58of the Division of Administrative Hearings, on August 22, 1990,
68in Jacksonville, Florida.
71APPEARANCES
72For Petitioner: Albert A. Moss, Pro Se
79111 Inwood Terrace
82Jacksonville, Florida 32207
85For Respondent: Stanley M. Danek, Esquire
91Department of Administration
94Division of Retirement
97Cedars Executive Center
100Building C
1022639 N. Monroe Street
106Tallahassee, FL 32399-1560
109STATEMENT OF THE ISSUES
113The issue is whether Petitioner was reemployed as a
122substitute or hourly teacher on a noncontractual basis after he
132was retired for one month.
137PRELIMINARY STATEMENT
139Petitioner is a retired member of the Florida
147Retirement System ("FRS"), Chapter 121, Florida Statutes, who was
158reemployed one month after his retirement by the Duval County
168School Board ("Board") as an hourly non-contract teacher. The
179Division of Retirement contends that the duties performed by the
189retiree were not those of an hourly non-contract teacher.
198The petitioner did not file proposed findings. The
206Respondent filed proposed findings which were read and
214considered. The Appendix, attached hereto and incorporated by
222reference herein, states in detail which proposed findings were
231adopted and which were rejected and why.
238FINDINGS OF FACT
2411. Petitioner was employed by the Board for several
250years as a driver's education teacher prior to his retirement.
260This position is a certificated teaching position under the rules
270of the State Department of Education.
2762. The operation of school buses in Duval County was
286and is done primarily by private companies, who are independent
296contractors and who, in turn, hire the bus drivers. Several
306years ago, the State of Florida required by law that all school
318bus drivers be certified as school bus drivers at the time of
330their initial employment. The Superintendent of Schools of Duval
339County instituted a program to certify its school bus drivers
349using Board personnel.
3523. Certificated driver's education teachers were
358asked to become qualified with the State to evaluate and test
369school bus drivers to insure that the drivers were in compliance
380with State law. Rule 6A-3.0141, et seq., Florida Administrative
389Code.
3904. All of the bus driver evaluators were driver's
399education instructors. Petitioner was one of the driver's
407education teachers who qualified and was employed to evaluate and
417test school bus drivers. The job of the Petitioner and other
428evaluators was to educate and test the drivers about the bus
439safety rules, to include "check" rides with drivers before
448certifying them. The school bus driver certification program is
457operated by the Board on a full-time basis, 5 days a week, 8
470hours a day.
4735. There is a written job description for the
482position of driver's education teacher which was not changed or
492amended to reflect the additional duties of bus driver
501evaluation.
5026. Prior to retiring, Petitioner worked as a driver's
511education teacher on a full-time basis (7 hours, 20 minutes per
522day) and performed the duties as evaluator and tester of the
533drivers after school and on Saturdays. He was paid a salary for
545his teaching duties and an additional amount for his services as
556bus driver evaluator. Although Petitioner received one
563compensation check, the payroll stub indicated regular and
571overtime pay. His additional compensation was calculated on the
580basis of hours actually worked and from the salary schedule for
591part-time teachers. Funding for regular work and overtime was
600charged to the same cost account, "1850", and all his pay was
612based upon his duties as a certified teacher in pay
622classification "0610."
6247. The payroll code for a driver's education teacher
633is "0610". The Board did not have a pay code for a bus driver
648evaluator. Evaluating bus drivers is an additional duty
656performed by driver's education teachers. Pay classification
663code "0610" is applicable to all driver's education teachers; and
673the Petitioner, as well as all of the driver's education
683teachers, was compensated from the instructional salary account
691of the Board.
6948. Although all bus driver evaluators were driver's
702education teachers, not all driver's education teachers were bus
711driver evaluators. Additional duty as a bus driver evaluator was
721voluntary, and driver's education teachers were paid additional
729compensation for performing these duties.
7349. Their entire pay, including the additional
741compensation, was charged to Responsibility Center No. 1850 -
750Driver's Education. Cost center code "1850" is a cost code
760associated with academic programs.
76410. Petitioner was rehired as a teacher after
772retirement and placed in pay category "0610". This was done
783because the only persons performing bus driver evaluations in
792Duval County are driver's education teachers, and no other
801classification or pay code is applicable. Petitioner was placed
810in salary code "0610", driver's education teacher.
81711. Messrs. Richard and Boney were Petitioner's
824supervisors and they did the administrative portion of certifying
833the drivers. Richard and Boney are "administrators" with the
842Board and not certificated or instructional personnel.
84912. A person is classified as a teacher on the basis
860of (a) the union collective bargaining agreement and (b) the
870rules of the Public Employees' Relation Commission. It is up to
881the supervisor to assign the person's duties. Those duties would
891determine the salary code from which the person would be paid.
90213. Petitioner retired under the FRS, effective July
9101, 1989, and was placed on the FRS payroll on that date. In July
924of 1989, he completed a Board form by which he made himself
936available for reemployment. Petitioner was rehired in August as
945a driver's education teacher, pay classification "0610", cost
953center "1850". His supervisor assigned him duties as a bus
964driver evaluator and tester beginning on August 21, 1990.
97314. Petitioner worked part of the months of August,
982September and October of 1989 and was paid at the rate of $15.85
995per hour, the same rate and from the same account as other hourly
1008teachers, "1850". (Exhibit No. 6). While so employed, he could
1019have taught the classroom phase of the evaluation program or
1029could have been assigned to teach driver's education; however,
1038Petitioner only did the road test and evaluation of bus drivers.
104915. Petitioner had the same duties relative to the
1058bus drivers' evaluations and testing both before and after
1067retirement. After retirement, the Petitioner had the same pay
1076code and cost center he had had before his retirement. Although
1087his assigned duties after retirement did not include driver's
1096education, Petitioner did some of the same work that he had done
1108before his retirement and was subject to being assigned student
1118teaching duties.
112016. Inadvertently, the Board deducted retirement
1126contributions from Petitioner's pay and reported the
1133contributions to the Division of Retirement. (Exhibit No. 5).
1142This precipitated an audit of the account; and the Division of
1153Retirement concluded, based upon the data, that Petitioner was
1162not employed as a teacher by the local school district.
1172CONCLUSIONS OF LAW
1175Section 121.091(9)(b)1., Florida Statutes (1988),
1180provides that a person retired under FRS may not receive both a
1192retirement benefit and salary for a 12-month period after
1201retirement. Specifically, this section states as follows:
1208Any person who is retired under this
1215chapter, ... may not receive both a salary from
1224reemployment with any agency participating in
1230the Florida Retirement System and retirement
1236benefits under this chapter for a period of
124412 months immediately subsequent to the date
1251of retirement. However, a district school
1257board may reemploy a retired member as a
1265substitute or hourly teacher on a
1271noncontractual basis after he has been
1277retired for 1 calendar month.
1282As the Division of Retirement states in its proposed
1291order, Chapter 121, Florida Statutes, does not define "teacher."
1300The Division seeks to define teaching duties using the
1309definitions of "school" and "teacher" from Chapter 228, Florida
1318Statutes. The definitions of "teacher" for other statutory
1326purposes is immaterial. In this case, the issue is not whether
1337Petitioner was employed as an hourly teacher. Clearly, he was.
1347The issue raised by the Division of Retirement is whether the
1358duties he was assigned were appropriate for an hourly teacher.
1368The Division argues that Petitioner was not a teacher
1377because he did not instruct students and that instructing
1386students is paramount in determining whether the Petitioner is
1395actually an hourly teacher. Although the Division of Retirement
1404has a legitimate concern that district school boards might avoid
1414the restriction on FRS reemployment by reemploying a person as a
1425teacher and assigning them other duties, in this case, the record
1436reveals no change in procedure between what the Board did or the
1448employee did before or after retirement.
1454Over one month after his retirement, Petitioner was
1462reemployed without a contract by the Board. He was placed on the payroll as an
1477hourly teacher, classified as a driver's education instructor, paid from the
1488hourly teacher payroll account, and assigned duties as a school bus driver
1500evaluator. In Duval County, all of the school bus driver evaluators are
1512driver's education teachers. There is not a category of "school bus driver
1524evaluators" within the system. The Petitioner was performing part of the same
1536duties he performed before he retired, he was paid from the same account, and
1550had the same pay classification as he had had before he retired. There is no
1565evidence that Petitioner was fraudulently classified as a teacher and assigned
1576to other duties. His duties were similar to those he had performed before
1589retirement and to other driver's education teachers similarly situated.
1598Although the Division argues that he did not teach students, he was fully
1611qualified to perform those duties and could have performed them if they had been
1625assigned to him.
1628The Division may not concur with the Board's choices,
1637but the Board has done nothing to bend the rules to accommodate
1649Petitioner. Clearly, he was classified as an hourly teacher,
1658paid as an hourly teacher, and performed duties he regularly
1668performed as a teacher before he retired. In summary, it is
1679appropriate for the Division to look at funding sources, pay
1689categories, etc. to determine if the retiree is being properly "classified" as
1701a teacher and is being paid from academic funding
1710sources. However, the Division is not well equipped to second-
1720guess a school board about the duties which it assigns to its
1732teachers. Unless a board's action appears to fraudulently avoid
1741the provisions to Chapter 121, Florida Statutes, the Division
1750should avoid looking behind the pay classification and accounting
1759codes. In this case, there is clearly no attempt to fraudulently
1770avoid the retirement law.
1774RECOMMENDATION
1775Having considered the foregoing Findings of Fact,
1782Conclusions of Law, the evidence of record, the candor and
1792demeanor of the witnesses, and the pleadings and arguments of the
1803parties, it is therefore,
1807RECOMMENDED that Division of Retirement take no action
1815to collect the benefits paid to the retiree during the period of
1827his reemployment by the Duval County School Board between August,
1837September, and October 1989.
1841DONE AND ENTERED this __28__ day of September, 1990, in
1851Tallahassee, Leon County, Florida.
1855____________________________
1856STEPHEN F. DEAN
1859Hearing Officer
1861Division of Administrative Hearings
1865The DeSoto Building
18681230 Apalachee Parkway
1871Tallahassee, FL 32399-1550
1874(904) 488-9675
1876Filed with the Clerk of the
1882Division of Administrative Hearings
1886this __28__ day of September, 1990.
1892APPENDIX TO RECOMMENDED ORDER
1896IN CASE NO. 90-2424
1900The Petitioner did not submit proposed findings of
1908fact.
1909Respondent's Proposed Findings of Fact
19141-8. Adopted.
19169. First portion adopted; last two sentences rejected
1924as irrelevant.
192610. Adopted.
192811. First portion adopted; last sentence rejected as
1936irrelevant.
193712. Adopted.
193913. Adopted, except first sentence, which was rejected
1947as irrelevant.
194914. Rejected as irrelevant.
195315. Adopted, except last two sentences, which were
1961rejected as statement of issues.
196616. Adopted.
1968COPIES FURNISHED:
1970Aletta Shutes, Secretary
1973Department of Administration
1976435 Carlton Building
1979Tallahassee, FL 32399-1550
1982Albert A. Moss, Pro Se
1987111 Inwood Terrace
1990Jacksonville, FL 32207
1993Stanley M. Danek, Esq.
1997Department of Administration
2000Division of Retirement
2003Cedars Executive Center
2006Building C
20082639 N. Monroe Street
2012Tallahassee, FL 32399-1560