Schoettle v. State, Dept. of Admin., Div. of Retirement

• Citation: 513 So.2d 1299,12 Fla. L. Weekly 2261
• Decision Date: 17 September 1987
• Docket Number: No. BR-132,BR-132
• Parties: 42 Ed. Law Rep. 688, 12 Fla. L. Weekly 2261 H. Lewis SCHOETTLE, Appellant, v. STATE of Florida, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Appellee.
• Court: Court of Appeal of Florida (US)

Page 1299

513 So.2d 1299

42 Ed. Law Rep. 688, 12 Fla. L. Weekly 2261

H. Lewis SCHOETTLE, Appellant, v. STATE of Florida, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Appellee.

No. BR-132.

District Court of Appeal of Florida First District.

Sept. 17, 1987.

Rehearing Denied Nov. 10, 1987.

Paul H. Amundsen of McDermott, Will & Emery, Tallahassee, for appellant.

Burton M. Michael, Asst. Division Atty., Division of Retirement, Tallahassee, for appellee.

SMITH, Chief Judge.

Schoettle, a teacher for approximately thirty years, appeals a final order denying his request for out-of-state service credit toward retirement for the school years 1963-64 and 1964-65, when he was employed at the George Seitz School, Kwajalein Atoll, the Marshall Islands. We reverse.

During the years in question, the military conducted highly secret missile testing on the atoll. The George Seitz School was built by the United States Navy for dependent children of American military and civilian personnel on the atoll in support of the military operation. The school was the only school on the atoll and attendance was mandatory for all school-age dependents residing on the atoll. It was tuition-free to attendees and operated as the equivalent of a public school in the United States. All students and teachers were United States citizens and the children of native Marshall Islanders were not permitted to attend.

When Schoettle was a teacher at the school, it was operated by two private companies, Transport Company of Texas and its successor company, Global Associates. Both these companies contracted with the United States government to provide support services to the military on Kwajalein. By way of explanation, Captain Allen, who was the United States Naval commanding officer of Kwajalein in 1963, testified that it was sometimes easier for the Navy to contract certain support services than to provide military personnel to carry out these functions. Accordingly, all logistic support for the missile range facilities, such as the school, the clinic, the bus transportation system, the commissary, the exchange, the service clubs and the military police were provided by these two companies. Though the school was operated by one or the other of these companies, the buildings, the supplies, the materials and the equipment were all furnished by the United States government and the latter were marked "property of the United States Navy."

Though Schoettle was paid by these private companies and not the United States government, the companies were reimbursed for his salary by the Department of Defense. Schoettle had to have a security clearance issued by the United States military before coming on board the island. He testified that he used military transport to go to and from the island and that he traveled per military orders. While on the island, he enjoyed benefits usually accorded only military personnel or government employees such as patronizing the officers' club and purchasing in the commissary and exchange.

The Division of Retirement (DOR) concluded that Dr. Schoettle's period of employment was with a private concern and not with the United States military so as to bring his service under and within the terms of section 238.06(9)(a), Florida Statutes, ¹ authorizing out-of-state credit. The Director of DOR testified below that when deciding whether to accord out-of-state credit, the division looks to the nature of the employer--whether public or private--and that Schoettle was not in the employ of a public employer so he was denied credit.

The language of the controlling statute, section 238.06(9)(a) provides:

(9) Subject to the provisions of subsection (4), out-of-state service credit shall be allowed for:

(a) Service rendered as a teacher in American overseas dependent schools conducted by the Armed Forces of the United States for children of citizens of the United States, residing in areas outside the continental United States ...

On appeal, DOR contends that the George Seitz School was not an American overseas dependent school "conducted" by the Armed Forces of the United States as required by section 238.06(9)(a). Relying on the dictionary definitions of "conduct," the division reasons that the word "conducted" in the statute is synonymous with the words "managed, directed and carried on," and that the undisputed record evidence shows that the George Seitz School was managed, directed and carried on by the private companies.

At the outset, we note that this is not a case of demonstrated agency expertise in an area which requires this court to accord the agency's construction of the statute great weight. When an agency urges a construction based on common, ordinary meanings, this mitigates, if it does not entirely eliminate, the rule calling upon the court to accord "great deference" to the agency's interpretation of the statute. State Department of Insurance v. Insurance Services Office, 434 So.2d 908, 912 n. 6 (Fla. 1st DCA 1983); and All Seasons Resorts v. Department of Business Regulation, Division of Land Sales, Condominiums and Mobile Homes, 455 So.2d 544, 548 (Fla. 1st DCA 1984).

DOR cites Public Employees Relations Commission v. Dade County Police Benevolent Association, 467 So.2d 987 (Fla.1985), for the proposition "that a reviewing court must defer to an agency's interpretation of an operable statute as long as that interpretation is consistent with legislative intent and is supported by substantial, competent evidence." However, the division has offered no explanation of how it arrived at "legislative intent," and points to no evidence to support its interpretation of "conducted by" as requiring direct payment by the Armed Forces to the teacher for his services, rather than through a contracting company reimbursed by the Department of Defense for providing the teacher's services. Instead, it is the department's position that it always denies credit when the employer was private rather than public. DOR offers no reason why the Legislature, if it thought at all, intended to or would intend to include a teacher paid directly by the military and supervised presumably by a military principal or other official, but exclude a teacher performing exactly the same function, but paid by a private company, and supervised by a private-citizen principal. Instead, we are simply left with a "rule without a reason."

If not "conducted" by the Armed Forces, by whom was the school "conducted"? The division offers no answer. It certainly was not "conducted" by the contracting company, as simple analysis will illustrate. Who could attend? Children of the military and civilians working under government contract. Who decided who could attend? Not the company--the government. Who paid for tuition and school expenses for the students? Not the parents of the students--but the government. Who allowed the school to operate on the militarily-controlled island? Not the company--the government. Whose idea was it to have a school? Not the company--the government. A school conducted on a militarily-controlled island, in a military-owned building, using military-owned text books, run on military time, paid for by public funds appropriated to serve, albeit indirectly, a military objective, is no less a school "conducted by the Armed Forces" because the actual teaching is performed by a teacher employed by a private company contracting with the government to provide this service, than if the teaching was performed by military personnel.

Statutory construction is ultimately the province of the judiciary. Our review of chapter 238, particularly sections 238.01(4) (defining teacher) and 238.06, leads us to conclude that the Legislature intended to allow teachers credit for out-of-state service in tax-supported public schools. See Salz v. Department of Administration, Division of...