98-001224 Sherry Stearns vs. Division Of Retirement Status: Closed Recommended Order on Wednesday, July 29, 1998.

Summary: Petitioner failed to show that she qualified under pre-existing or existing rules and statutes for retirement credits for service in a temporary CETA position within a state agency.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHERRY STEARNS, )

)

Petitioner, )

)

vs. ) Case No. 98-1224

)

DEPARTMENT OF MANAGEMENT SERVICES, )

DIVISION OF RETIREMENT, )

)

Respondent. )

_____________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in Daytona Beach,

Florida, on June 10, 1998, by Stephen F. Dean, assigned

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Sherry Stearns, pro se

360 South Senaca Boulevard

Daytona Beach, Florida 32114

For Respondent: Stanley N. Danek, Esquire

Department of Management Services

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUE

The issue is whether Petitioner is eligible to purchase her

employee service as a CETA employee with a state agency as

credible service in the Florida Retirement Service.

PRELIMINARY STATEMENT

Petitioner applied for retirement credit for her employment

as a CETA employee of the Department of Labor and Commerce from

January 1976 until September 30, 1977. The Division of

Retirement denied Petitioner's application, and advised her of

her right to a hearing on the issue. Petitioner requested a

formal hearing, and the Division referred the case to the

Division of Administrative Hearings. The case was noticed for

hearing and heard as noticed.

The Petitioner testified in her own behalf at hearing. The

Division of Retirement called Ira Gaines as its only witness and

introduced its records of Petitioner's service as a CETA employee

as its only exhibit which was received into evidence. Both

parties submitted proposed findings which were read and

considered.

FINDINGS OF FACT

1. Petitioner, Sherry Stearns, was employed by the State of

Florida, Department of Labor and Commerce, in the Florida State

Unemployment office from January 1976 until September 30, 1977.

2. The records maintained by the Department of Retirement

based upon payroll data submitted by the Department of Revenue

reflect that Petitioner was not in a permanent position as

reflected by the Code 0303 and the entry of "zz" in the last

column showing she was not eligible for retirement benefits.

3. The Petitioner offered no evidence in support of her

claim to show that she was employed in a position which was

covered or for which she could claim prior service credit.

CONCLUSIONS OF LAW

4. The Division of Administrative Hearings has jurisdiction

over the parties and the subject matter of this case, pursuant to

Section 120.57(1), Florida Statutes.

5. The burden of proof is on Petitioner to show she is

entitled to retirement credit.

6. To qualify for retirement credit, the Petitioner must

show that the claimed service was covered under the rules which

existed at the time of her service or under the current rules.

7. At all times during her employment, the statute and

rules restricted retirement credit for state employees to those

persons employed or filling a regularly established position and

compensated from a salary appropriation or account.

8. The Petitioner candidly stated she was in a CETA

position. CETA positions were funded from federal funds, and,

although coverage was extended to those CETA employees of local

agencies, it was not extended to CETA employers of state

agencies. Compare Rules 60S-1.004(4)(a) and (b), with Rules 60S-

1004.(4)(c) 6 and 7a - c, Florida Administrative Code.

9. Rule 60S-1004(5), Florida Administrative Code,

specifically excludes coverage for an employee filling a

temporary position. A temporary position is one compensated from

another personal services account as provided for in Section

216.011(1)x, Florida Statutes.

10. Other personal services means compensation for services

rendered by a person who is not a regular or full-time employee

filling an established position. This definition includes, but

is not limited to, services of temporary employees, student

fellowships, part-time academic employees, board members,

consultants, and other services specifically budgeted by each

agency.

11. The statute goes on to recite that it is intended that

persons paid from salaries appropriations shall be state

officials and employees and shall be eligible for membership in a

state retirement system, and those paid from other personal

services appropriations shall not be eligible for such

membership.

12. The records introduced by the Division of Retirement

show that Petitioner was not paid from a salary appropriation and

was not eligible for retirement credit.

13. The Petitioner's claim must be denied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That Petitioner's claim be DENIED.

DONE AND ENTERED this 29th day of July, 1998, in

Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, F lorida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of July, 1998.

COPIES FURNISHED:

Sherry Stearns

360 South Senaca Boulevard

Daytona Beach, Florida 32114

Stanley N. Danek, Esquire

Department of Management Services

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

William H. Linder, Secretary

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

Paul A. Rowell, General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

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.