99-005281 Robert Edmonds vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Thursday, June 15, 2000.

Summary: Petitioner was an on-call employee who was not eligible to participate in the Florida Retirement Service.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT EDMONDS, )

)

Petitioner, )

)

vs. ) Case No. 99-5281

)

DEPARTMENT OF MANAGEMENT SERVICES, )

DIVISION OF RETIREMENT, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on April 26, 2000, at Miami and Tallahassee, Florida, by video

teleconference before Susan B. Kirkland, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Robert M. Edmonds, pro se

1729 26th Avenue

Vero Beach, Florida 32960

For Respondent: Larry D. Scott, 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

Whether Petitioner should be excluded from participating in

the Florida Retirement System from January 8, 1989, through

October 13, 1995.

PRELIMINARY STATEMENT

Petitioner, Robert M. Edmonds (Edmonds), requested

Respondent, Department of Management Services, Division of

Retirement (Department), to audit his retirement account to

determine his years of eligible service in the Florida Retirement

Service (FRS). The Department determined that Edmonds was

eligible for retirement service credit from March 7, 1984,

through December 1988, and denied retirement service credit from

January 8, 1989, through October 13, 1995. Edmonds requested an

administrative hearing, and the case was forwarded to the

Division of Administrative Hearings for assignment to an

Administrative Law Judge.

At the final hearing, Edmonds testified in his own behalf

and called Leroy Kretschmar as his witness. Petitioner's

Exhibits 1 and 2 were introduced into evidence. The Department

called David Ragsdale, David Aldet, and Virginia Russell as its

witnesses. Respondent's Exhibits 3-5, 10, 11, 15-18, and 20-23

were admitted into evidence. Respondent's Exhibit 22 was

admitted relating to conversations on November, 21, 1997 and

November 26, 1997, but not relating to conversations on January

23, 1998.

Official recognition was taken of Chapter 60S-1, Florida

Administrative Code, and Chapter 121, Florida Statutes.

No transcript was ordered. The parties agreed to file

proposed recommended orders on or before May 18, 2000. The

parties timely filed their proposed recommended orders, which

have been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. In March 1984, Edmonds was hired by the Village of El

Portal Police Department. His position was described by the

chief of police as a part-time position. Edmonds retired from

the police department on October 13, 1995.

2. Edmonds was hired to work when other police officers

were not available to work their shifts due to illness or annual

leave. He did not have regularly scheduled shifts. The police

chief would notify Edmonds when he was needed, and Edmonds would

work the shift of the officer who was unavailable. Sometimes

Edmonds would be scheduled months in advance. Edmonds could

decline to work if he was unavailable. He had his own business,

and there were times when he had a conflict and could not work

when called. Edmonds did not receive annual or sick leave. He

was not guaranteed a certain amount of work.

3. Sometime after Edmonds was hired, the police department

instituted a reserve police officer program, in which volunteers

rode with police officers employed by the Village of El Portal.

The reserve officers were required to volunteer at least 18 hours

a month.

4. From March 1984 through May 1988, the Village of El

Portal made contributions to the FRS on Edmonds' behalf. Based

on the evidence presented, it appears contributions on Edmonds'

behalf were discontinued because he was being treated as a

reserve officer for purposes of retirement benefits. However,

Edmonds was never hired as a reserve officer. Edmonds was not

informed that the Village of El Portal had discontinued paying

into FRS on his behalf.

5. The records from the police department do not show the

amount of time that Edmonds worked from March 1984 through

December 1988. Edmonds suffered a seizure in 1988 and did not

work for at least six months during that year.

6. From 1989 to 1995, Edmonds worked a total of 38 days

with the Village of El Portal Police Department. Edmonds worked

two days in 1989, beginning on January 8. He work for two days

in 1990. In 1991, he worked ten days. In 1992, he worked eight

days. Edmonds worked three days in 1993, and ten days in 1994.

He worked five days in 1995.

7. In 1997, Edmonds requested the Department to audit his

retirement account to establish his retirement service credit.

The Department requested information from the Village of El

Portal concerning Edmonds' employment with the police department.

Based on the information supplied by the Village of El Portal,

the Department determined that at least from January 8, 1989,

through October 13, 1995, Edmonds was a temporary "on-call"

employee; thus, he was excluded from the FRS for that period of

time.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of this proceeding.

Section 120.57(1), Florida Statutes.

9. The FRS is codified in Chapter 121, Florida Statutes.

Section 121.051, Florida Statues, and provides for compulsory

participation in the FRS for all employees hired after December

1, 1970. Section 121.021(11), Florida Statutes, defines employee

as follows:

[A] ny person receiving salary payments for

work performed in a regularly established

position and, if employed by a city or

special district, employed in a covered

group.

10. Pursuant to Section 121.021(52)(b), Florida Statutes,

"a regularly established position" is defined as follows:

In a local agency (district school board,

county agency, community college, city, or

special district), the term means a regularly

established position which will be in

existence for a period beyond 6 consecutive

months, except as provided by rule.

11. Rule 60S-1.004(5), Florida Administrative Code,

provides:

(5) An employee who is filling a temporary

position shall not be eligible for membership

in the Florida Retirement System. . . . A

position meeting the definition below shall

be a temporary position

* * *

(b) A temporary position in a local agency

is:

1. An employment position which will not

exist beyond 6 consecutive calendar months;

or

2. An employment position which is listed

below in (d) regardless of whether it will

exist beyond 6 consecutive months.

* * *

(d) The following types of positions in a

local agency are considered temporary

positions for retirement purposes.

* * *

5. On Call Positions (positions filled by

employees who are called to work unexpectedly

for brief periods and whose employment ceases

when the purpose for being called is

satisfied).

12. Edmonds had an on call position with the police

department of the Village of El Portal from at least January 8,

1989, through October 13, 1995. He worked when he was needed and

had no guarantee of further employment after he completed the

work for which he was called to do. He did not have a regularly

scheduled shift and did not earn either annual or sick leave. He

could decline to work if he desired.

13. Edmonds' position was similar to the positions of pool

nurses in Hillsborough County Hospital Authority v. State, Dept.

of Admin. Div. of Retirement , 495 So. 2d 249, 253 (Fla. 2d DCA

1986), in which the court held that pool nurses occupied

temporary positions and could not be considered as members of the

FRS. The court described the pool nurses' positions as follows:

The nurses in the pool have no guarantee

that they will be called and have no

obligation to work if called. They may avoid

their commitment to work a particular shift

by giving as little as twenty-four hours'

notice. They can and do work for other

hospitals. They are paid more than regular

employees, but they receive no fringe

benefits. . . .

14. Because Edmonds occupied an on call position, he was

not eligible to participate in the FRS from January 8, 1989,

through October 13, 1995.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a Final Order be entered finding that

Robert M. Edmonds was not eligible to participate in the Florida

Retirement System from January 8, 1989, through October 13, 1995.

DONE AND ENTERED this 15th day of June, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of June, 2000.

COPIES FURNISHED:

Larry D. Scott, Esquire

Department of Management Services

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

Robert M. Edmonds

1729 26th Avenue

Vero Beach, Florida 32960

Ron Poppell, Interim Director

Division of Retirement

Department of Management Services

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

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.