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New v. Department of Management Services

Florida Court of Appeals, Second District

January 19, 2018

BETTY E. NEW, Appellant,
v.
DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, Appellee.

          NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Department of Management Services, Division of Retirement.

          Mark Herron and Thomas H. Bateman, III of Messer Caparello, P.A., Tallahassee, for Appellant.

          Thomas E. Wright, Assistant General Counsel, Department of Management Services, Tallahassee, for Appellee.

          SLEET, Judge.

         Betty E. New appeals a final administrative order denying her request for senior management service class (SMSC) benefits in the Florida Retirement System (FRS) from July 1, 2004, to her retirement date of June 30, 2015. Because the Department of Management Services (Department) in 2003 designated and approved Ms. New as eligible for SMSC class status retroactive to the date of her hiring in 2002, the Department could not impair or reduce Ms. New's retirement benefits, including SMSC class eligibility, based solely on the 2004 transfer of functions from local to State government, and we therefore reverse.

         On February 1, 2002, Ms. New began her employment as court counsel for the Sixth Judicial Circuit. Through an interlocal agreement Ms. New was under the supervision and control of the chief judge of the Sixth Judicial Circuit, but her salary and benefits were paid by Pinellas County. In 2002, the court counsel position was designated in the Regular Class of the FRS. In March 2003, Pinellas County filed a formal request to the Department to add Ms. New to the SMSC of the FRS. The request was granted by the Department retroactive to her hire date of February 1, 2002.

         On July 1, 2004, the funding for the position of court counsel for the Sixth Judicial Circuit was transferred by operation of law from Pinellas County to the State of Florida. When the funding for the court counsel position was transferred from Pinellas County to the State, Ms. New's employment functions, duties, and responsibilities did not change. However, the Department informed Ms. New that her prior designation and approval in the SMSC was terminated, and she was designated into the Regular Class until her retirement in 2015. In August 2004, when Ms. New sought to challenge the class reduction, she was instructed to wait until she retired to challenge it. Ms. New's retirement benefits were reduced by approximately $4800 annually because she was denied eleven years of SMSC credit.

         Upon retirement, Ms. New requested the Department award her SMSC credit for the period July 1, 2004, to June 30, 2015. The Department denied her request and asserted that she had been an employee of the State Court System since July 1, 2004, and that Florida law did not expressly provide SMSC eligibility for her court counsel position.

         Ms. New requested a formal hearing, and the Department referred the matter to the Division of Administrative Hearings. Following a formal hearing, the Administrative Law Judge issued a recommended order, finding that Ms. New had been an employee of Pinellas County from 2002 to 2004 and recommending that Ms. New's request for SMSC benefits be denied for the period of July 1, 2004, to June 30, 2015. The Department adopted the recommended order, finding that for FRS purposes Ms. New had been an employee of Pinellas County from 2002 to 2004 and an employee of the State Courts System from 2004 to 2015, making her eligible only for Regular Class member retirement benefits for 2004 to 2015. In other words, Ms. New was denied SMSC status because the entity handling her retirement benefits and issuing her paycheck had changed. Ms. New timely appealed to this court.

         "Generally, an appellate court will uphold an agency decision if it is supported by competent, substantial evidence." Bridlewood Grp. Home v. Agency for Persons with Disabilities, 136 So.3d 652, 655 (Fla. 2d DCA 2013). Deference is given to an agency's interpretation of the statute it is charged with enforcing. Verizon Fla., Inc. v. Jacobs, 810 So.2d 906, 908 (Fla. 2002). But a court will depart from an agency's construction of the statute it is charged with enforcing when the construction is "clearly erroneous." Id. (quoting PW Ventures, Inc. v. Nichols, 533 So.2d 281, 283 (Fla. 1988)).

          The sole issue is whether the Department erred by denying Ms. New's request for FRS SMSC service credit for the period of July 1, 2004, through June 30, 2015, because her employer changed as a result of the transfer of functions between state and local county government. Resolution of this issue is controlled by the Florida statutes applicable to FRS beneficiaries.

         Section 121.055(1)(h)(1), Florida Statutes (2002), provides that

participation in the Senior Management Service Class shall be compulsory for the State Courts Administrator and the Deputy State Courts Administrators, the Clerk of the Supreme Court, the Marshal of the Supreme Court, the Executive Director of the Justice Administrative Commission, the Capital Collateral Regional Counsels, the clerks of the district courts of appeal[], the marshals of the district courts of appeal[], ...

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