Wise v. Dept. of Mgmt. Servs., Div. Of Ret., 2D05-4490.

• Decision Date: 23 June 2006
• Docket Number: No. 2D05-4490.,2D05-4490.
• Citation: 930 So.2d 867
• Parties: Madonna Sue Jervis WISE, Appellant, v. DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, Appellee.
• Court: Florida District Court of Appeals

930 So.2d 867

Madonna Sue Jervis WISE, Appellant, v. DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, Appellee.

No. 2D05-4490.

District Court of Appeal of Florida, Second District.

June 23, 2006.

Madonna Sue Jervis Wise, pro se.

Thomas E. Wright, Senior Attorney, Department of Management Services, Tallahassee, for Appellee.

CASANUEVA, Judge.

Madonna Sue Jervis Wise, a retired public school teacher, appeals from a denial of service credit by the Department of Management Services, Division of Retirement, that reversed an administrative law judge's grant of the credit. We reverse.

Mrs. Wise was an employee of Florida's public school system for over thirty years, during which she served variously as a classroom teacher, county-level administrator, grant writer, and school principal. She planned to retire at the end of the 2003-04 school year. In August 2001, she interviewed and was hired for a position at what is presently known as the Florida Virtual School [FVS], a public entity that offers online courses to Florida students attending grades seven through twelve. She began working part-time at FVS on September 15, 2001, while continuing her full-time duties with the Pasco County public school system. During the 2001 school year, her position with FVS was designated as "adjunct" in all relevant documents. While employed part-time with FVS, she undertook numerous additional work assignments including preparing federal grant requests to obtain increased funding for the school and working on online course development. Also, she served on the committee that produced the first FVS employee handbook titled "Policies and Procedures Manual" [the "manual"]. Recognizing a valuable asset, FVS offered her a full-time position for the 2002-03 school year, which she accepted; she also maintained part-time employment with the Pasco system. This arrangement continued through the 2003-04 school year until her retirement.

In April 2004, shortly before her scheduled June 2004 retirement, the Division informed Mrs. Wise that her earnings for the period beginning September 15, 2001, and ending on June 30, 2002 (the "contested period"), would not be included as part of her average final compensation. This decision meant that her retirement benefits would be smaller than she expected. The Division's decision was based upon its conclusion that Mrs. Wise's employment in the contested period was classified as "temporary employment," rendering it not qualified for earning retirement credit because the FVS position was not a "regularly established position." Mrs. Wise disputed the Division's decision and, upon being denied the credit after review, appealed the denial to the Department of Administrative Hearings. The administrative law judge [ALJ] held an evidentiary hearing at which three witnesses testified: Mrs. Wise for herself; and, on behalf of the Division, Linda Peters, who was the director of Human Resources for FVS since November 2004, and Cathy Smith, the chief of the Division's Bureau of Enrollment Contributions. At the hearing, it was undisputed that FVS did not begin to participate in the Florida Retirement System until December 1, 2001, during the contested period.

The ALJ found that Mrs. Wise was employed during the contested period in a retirement credit-earning position, not a temporary one, and was thus entitled to have her earnings during the contested period included in her average final compensation, starting from December 1, 2001.¹ The ALJ's recommended order states in relevant part:

33. The letter of intent form [used by FVS employees to indicate whether they wished to continue their employment with FVS] requested [Mrs. Wise] to indicate whether she intended to continue her "adjunct employment status" and whether she would be interested in "a full-time position." The form did not refer to either a "temporary position," or a "part-time position." [Mrs. Wise] reasonably inferred that "adjunct employment status" was the part-time alternative to "a full-time position." The inference was consistent with the announced purpose for serving in FVS and the evidence as a whole. [The Division] also does not define part-time employment to exclude a regularly established position.

....

40. There was nothing temporary in the expectations of [FVS] and [Mrs. Wise] during the contested period. [FVS] staff had legitimate business reasons to expect continued student enrollment and legislative funding during the contested period. [FVS] also had legitimate reasons to expect continued employment of [Mrs. Wise] based on the individual experience [FVS] enjoyed with [Mrs. Wise], the ongoing and continuous nature of [Mrs. Wise's] work, and the significant additional duties assigned to [Mrs. Wise]. [FVS], in fact, employed [Mrs. Wise] continuously after the contested period.

The Division rejected the ALJ's recommended order and denied Mrs. Wise service credit for the contested period, concluding that she was a temporary employee during this period. The Division's final order rejected many of the ALJ's findings based on the testimony of its two expert witnesses, Ms. Peters and Ms. Smith. The ALJ had determined, however, to give little weight to their testimony because they lacked adequate knowledge of the relevant facts. Specifically, the ALJ found that the Division did not call a witness from FVS who was competent to testify about events that occurred during the contested period. Ms. Peters, the FVS representative, testified that she started there after Mrs. Wise retired. Ms. Smith was employed by the Division and had no knowledge of Mrs. Wise's employment status at FVS during the contested period. This record indicates that Ms. Smith was essentially looking at the contested period from the perspective in 2004, when the school was more firmly established in its practices and procedures rather than from the perspective of conditions in 2001, when Mrs. Wise began her tenure at FVS.² We conclude that the Division's reasons for rejecting the ALJ's dispositive findings are not supportable.

The Division did highlight some of the ALJ's factual findings that the record evidence did not support, but we find these few shortcomings not material. For example, the ALJ found that Mrs. Wise was in a regularly established position partly because she was assigned numerous extra duties, such as grant writing and helping to develop the manual, which was inconsistent with being a temporary employee. The Division correctly pointed out that there was no testimony that she was required to assume these extra duties, rather than having merely volunteered. The ALJ also found as fact that Ms. Wise disclosed to her supervisor at FVS at the time of her employment that she sought employment at FVS to enhance her retirement benefits. The Division properly noted that the hearing transcript does not reflect that this fact was communicated to her supervisor during her interview for the position; rather, this was her subjective intent. Had she mentioned it at the interview, she would have been told that FVS was not then participating in the Florida Retirement System. The ALJ also found that FVS was a state agency, rather than a local agency, such as a county school system. The Division took issue with this finding based primarily on the testimony of Ms. Smith. Although it remains debatable whether FVS is a local or state agency, each of which defines criteria for determining whether an employee is in a temporary position, this is not the determinative issue. Under either set of criteria, Mrs. Wise cannot be considered a temporary employee during the contested period. For purposes of this opinion, we will consider FVS a local agency. As illustrated by the quotation from the recommended order, the impetus behind the ALJ's decision was the fact that the totality of the circumstances showed that she was in a regularly established position, albeit part-time, that entitled her to retirement credit for the contested period.

An appellate court generally defers to the administrative agency because of its greater knowledge and experience in interpreting the law related to it. We must accept the ALJ's findings regarding factual disputes, the weight of the evidence presented, and the credibility of the witnesses. § 120.68(10); Doyle v. Fla. Unemployment Appeals Comm'n, 635 So.2d 1028 (Fla. 2d DCA 1994); Pasco County Sch. Bd. v. Fla. Pub. Employees Relations Comm'n, 353 So.2d 108 (Fla. 1st DCA 1977). However, if the agency's decision is not supported by substantial, competent evidence established in the record of the administrative hearing, it will be overturned. § 120.68(7) Fla. Stat. (2005). But an appellate court reviews the agency's conclusions of law de novo. Steward v. Dep't of Children & Families, 865 So.2d 528 (Fla. 1st DCA 2003).

Section 120.57(1)(l), Florida Statutes (2005), part of the Administrative Procedure Act, somewhat circumscribes the authority of the Division in reviewing an administrative law judge's determination:

(l) The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted...