96-004764 Michael Kasha vs. Division Of Retirement Status: Closed Recommended Order on Wednesday, January 22, 1997.

Summary: Use of twelve-month work year inappropriate in calculating service credit where employee on a nine-month annual contract.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL KASHA, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4764

)

DIVISION OF RETIREMENT, )

)

Respondent. )

___________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of

Administrative Hearings by its assigned Administrative Law Judge, Donald R.

Alexander, on December 18, 1996, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Michael Kasha, pro se

3260 Longleaf Road

Tallahassee, Florida 32310

For Respondent: Stanley M. Danek, Esquire

2639 North Monroe Street, Building C

Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUE

The issue is whether petitioner's average final compensation and retirement

service credit were properly calculated.

PRELIMINARY STATEMENT

This matter began on August 30, 1996, when respondent, Division of

Retirement, issued a letter reaffirming its calculation of average final

compenation and service credit for petitioner, Dr. Michael Kasha, a former

professor at Florida State University. Thereafter, petitioner requested a

formal hearing under Section 120.57(1), Florida Statutes, to contest the

proposed action.

The matter was referred by respondent to the Division of Administrative

Hearings on October 10, 1996, with a request that an Administrative Law Judge be

assigned to conduct a formal hearing. By Notice of Hearing dated November 5,

1996, a final hearing was scheduled on December 18, 1996, in Tallahassee,

Florida.

At final hearing, petitioner testified on his own behalf and offered

petitioner's composite exhibit 1. The exhibit was received in evidence.

Respondent presented the testimony of Douglas M. Cherry, a retirement

administrator.

There is no transcript of hearing. Proposed findings of fact and

conclusions of law were filed by respondent on January 9, 1997. In addition, on

the same date, petitioner filed a letter containing argument in support of his

position. Both documents have been considered by the undersigned in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are

determined:

1. Petitioner, Dr. Michael Kasha, is a former professor in the School of

Arts and Sciences at Florida State University. His most recent stint of

employment occurred during school year 1995-96 when he was employed in the

Institute of Molecular Biophysics. He retired at the end of December 1995, and

counting several years of out-of-state service, he had a total of 50.58 years of

creditable service.

2. In November 1995, petitioner contacted respondent, Division of

Retirement (DOR), for the purpose of determining his Average Final Compensation

(AFC) for retirement purposes. That agency has the statutory responsibility of

performing all retirement related calculations.

3. In making its calculations, DOR determined petitioner's service credit

for his last fiscal year of service (1995-96) by using a nine-month work year

divided by six months of actual service (July-December 1995), or a .67 service

credit. When this factor was applied to his compensation received for the six

months of service, it produced a much lower annualized salary for ranking

purposes than petitioner expected. Contending that a twelve-month work year

should have been used, rather than the nine months used by DOR, petitioner filed

a request for a hearing to contest DOR's action.

4. During petitioner's last fiscal year of service, he was contracted to

work from July 1 to July 28, 1995, by a Summer Supplemental Employment Contract.

In addition, he was employed under a Nine Month Employment Contract from August

8, 1995, to May 6, 1996. On January 23, 1996, however, this contract was

mutually revised by the parties to provide that petitioner's employment would

terminate on December 29, 1995. Between July 1, 1995, and December 29, 1995,

the parties agree that petitioner received $67,290.22 in total compensation from

the university.

5. To determine a member's appropriate service credit, DOR rule 60S-

2.002(4)(a) provides that if a

member earns service credit for fewer months

than comprise his work year, he shall receive

a fraction of a year of service credit, such

fraction to be determined by dividing the

number of months and fractions thereof of

service earned by the number of months in

the approved work year.

Since petitioner worked only six months during his last work year, the rule

requires that this period of time be divided by "the number of months in the

approved work year" to calculate his appropriate service credit.

6. Members of the retirement system are employed for either nine, ten or

twelve months each fiscal year, depending on the nature of their jobs. As to

university instructional/academic members, such as petitioner, DOR rule 60S-

2.002(4)(b) defines the work year to be

the number of months in the full contract

year or nine months, whichever is greater,

as specified by the contract between the

employee and the school system.

7. Because university faculty members normally work under a nine-month

contract, DOR used that time period to establish petitioner's work year. In

doing so, DOR excluded petitioner's Supplemental Summer School Contract on the

theory it was "supplemental to (his) regular 9 month contract." That is to say,

petitioner earned a maximum full year of creditable service during the nine

months, and the three months in the supplemental contract would not add any

additional creditable service. This determination is in conformity with the

rule.

8. Since petitioner's actual service credit for fiscal year 1995-96 was

six months, that is, he worked full-time from July 1 through December 29, 1995,

the computation under rule 60S-2.002(4)(a) produced a service credit of .67.

Petitioner's compensation of $67,290.22 was then divided by the .67 factor and

resulted in an annualized salary for ranking purposes of $100,433.16. Since the

salary was not one of petitioner's highest fiscal years of salary, it was

excluded from his AFC.

9. Petitioner contends, however, that his work year is actually twelve

months, rather than nine, if his Supplemental Summer School Contract is

included. He points out that the university has always required that he and

other science professors be on campus twelve months a year, unlike most other

faculty members. Despite this requirement, the university has never used a

twelve-month contract for this group of professors. Instead, it has relied on a

combination of regular and supplemental contracts.

10. If a twelve month work year had been used for petitioner's last fiscal

year, this would have produced a service credit of .50, which if applied to his

compensation, would have produced an annualized salary for ranking purposes of

$134,580.44. This in turn would increase petitioner's retirement benefits by

more than $1,200 per year.

11. There is no provision in the DOR's rules which permits the use of a

twelve-month work year in calculating the service credit for any person who is

employed under a nine-month contract. While this may be unfair to members who

find themselves in petitioner's circumstances, until the rule is changed, it

must be uniformly applied. Therefore, the request should be denied.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties hereto pursuant to Section 120.57(1), Florida

Statutes.

13. As the party seeking relief, petitioner bears the burden of proving by

a preponderance of the evidence that he is entitled to the requested relief.

See, e. g., Fla. Dep't of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 788

(Fla. 1st DCA 1981).

14. Section 121.021(1), Florida Statutes, provides that retirement

benefits for members of the Florida Retirement System shall be calculated by

determining the years of creditable service times the AFC times the percent of

value for each year of service. In this case, the dispute centers around the

calculation of the retirement service credit for petitioner's last fiscal year

of employment.

15. Rule 60S-2.002(4), Florida Administrative Code, prescribes the method

for determining retirement service credit. It reads in pertinent part as

follows:

(a) A member's retirement service credit

shall be measured in terms of years and

fractions, thereof during each July 1

through June 30 fiscal year.

(b) The approved work year pursuant to

Florida Statutes for the purpose of deter-

mining service credit in accordance with this

policy is as follows:

1. Academic or instructional employees ...

of a ... state university: The work year

shall be the number of months in the full

contract year or nine months, whichever is

greater, as specified by the contract between

the employee and the school system in accor-

dance with the law (Chapters 228 and 230,

Florida Statutes).

16. In calculating the AFC for the years in which the member works less

than a full year, Rule 60S-4.004(1)(a)2., Florida Administrative Code, provides

that such calculation shall be done in the following manner:

2. Rank the fiscal years of salary in order

from the highest annual salary to the lowest

annual salary. In order to determine the

annual salary for ranking purposes only,

during a year in which the member receives

less than a full year of creditable service,

divide the actual salary received by the

percentage of a year of creditable service

earned for that year.

17. The evidence clearly shows that respondent calculated petitioner's

retirement benefits in conformity with its rules. While petitioner has

understandably urged that his benefits be calculated in a manner that would more

equitably address his employment situation, the DOR's rules do not recognize a

separate category for members who have consistently worked on a twelve-month

basis using both a regular and supplemental contract. While this creates an

unfair result for members such as petitioner, until the rule is changed, it must

be uniformly applied. Unfortunately, then, petitioner's request to have his

retirement benefits recalculated should be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Division of Retirement enter a final order denying

petitioner's request to have his retirement benefit calculated using a twelve-

month work year for his last fiscal year of employment.

DONE AND ENTERED this 22nd day of January, 1997, in Tallahassee, Florida.

____________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of January, 1997.

COPIES FURNISHED:

Dr. Michael Kasha

3260 Longleaf Road

Tallahassee, Florida 32310

Stanley M. Danek, Esquire

Division of Retirement

2639-C North Monroe Street

Tallahassee, Florida 32399-1560

A. J. McMullian, III, Director

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. Any exceptions to this Recommended Order should be filed with the agency

that will issue the final order.