BETTY E. NEW, Appellant,
DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Department of Management Services, Division of
Herron and Thomas H. Bateman, III of Messer Caparello, P.A.,
Tallahassee, for Appellant.
E. Wright, Assistant General Counsel, Department of
Management Services, Tallahassee, for Appellee.
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
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.
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.
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.
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.
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.
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
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,