F.S. 1981 ADMINISTRATIVE PROCEDURE ACT Ch.120

reference to the location in the Florida Administra­tive Weekly where the text of the proposed rules is published. Forms shall not be published in the Flori­da Administrative Weekly but shall be included in the rules by reference. The reference shall state, at a minimum, the title and the effective date of the form and an explanation of how the form may be obtained.

3. All notices of meetings, hearings, and work­shops conducted in accordance with the provisions of s. 120.53(1)(d), including a statement of the manner in which a copy of the agenda may be obtained.

4. A notice of each request for authorization to amend or repeal an existing model rule or for the adoption of new model rules.

5. A notice of each request for exemption from any provision of this chapter.

6. Notice of petitions for declaratory statements or administrative determinations.

7. A summary of each objection to any rule filed by the Administrative Procedures Committee during the preceding week.

8. Any other material required or authorized by law or deemed useful by the department.

The department may contract with a publishing firm for publication of the Florida Administrative Weekly.

(c) Prescribe by rule the style and form required for rules submitted for filing and establish the form for their certification.

(d) Correct grammatical, typographical, and like errors not affecting the construction or meaning of the rules, after having obtained the advice and con­sent of the appropriate agency, and insert history notes.

(e) Make copies of the Florida Administrative Weekly available on an annual subscription basis computed to cover a pro rata share of 50 percent of the costs related to the publication of the Florida Ad­ministrative Weekly.

(f) Charge each agency using the Florida Admin­istrative Weekly a space rate computed to cover a pro rata share of 50 percent of the costs related to the Florida Administrative Weekly.

(2) Each agency shall print or distribute copies of its rules, citing the specific rulemaking authority pur­suant to which each rule was adopted.

(3)(a) The Department of State shall furnish the Florida Administrative Code and the Florida Admin­istrative Weekly, without charge and upon request, as follows:

1. One set to each federal and state court having jurisdiction over the residents of the state; each Flor­ida senator, congressman, and state legislator; the Legislative Library; each state university library; the State Library; and each standing committee of the Senate and House of Representatives.

2. Two sets to each state department. 3. Three sets to the library of the Supreme Court

of Florida, the library of each state district court of appeal, the division, the library of the Attorney Gen­eral, each law school library in Florida, the Secretary of the Senate, and the Clerk of the House.

4. Ten sets to the committee. (b) The Department of State shall furnish one

copy of the Florida Administrative Weekly, at no cost, to the depository libraries of the Florida State Library, each clerk of the circuit court, and each state department, for posting for public inspection.

(4)(a) There is hereby created in the State Trea­sury a revolving fund to be known as the Department of State's "Publication Revolving Trust Fund."

(b) All fees and moneys collected by the Depart­ment of State under this chapter shall be deposited in the revolving trust fund for the purpose of paying for the publication and distribution of the Florida Administrative Code and the Florida Administrative Weekly and for associated costs incurred by the de­partment in carrying out this chapter.

(c) The unencumbered balance in the revolving trust fund at the beginning of each fiscal year shall not exceed $100,000, and any excess shall be trans­ferred to the General Revenue Fund.

(d) It is the intent of the Legislature that the Florida Administrative Weekly be supported entirely from funds collected for subscriptions to and adver­tisements in the Florida Administrative Weekly. To that end, the Department of State is authorized to add a surcharge of 10 percent to any charge relating to the Florida Administrative Weekly until such time as the Publication Revolving Trust Fund has trans­ferred to the General Revenue Fund an amount equal to all funds appropriated to the trust fund.

History.-s. I, ch. 74-310; s. I, ch. 75-107; s. 4, ch. 75-191; s. 5, ch. 76-131; s. I, ch. 77-174; s. 4, ch. 77-453; s. 3, ch. 78-425; s. 4, ch. 79-299; s. 7, ch. 80-391; s. 4, ch. 81-309.

120.56 Administrative determination of rule by hearing officer.-

(1) Any person substantially affected by a rule may seek an administrative determination of the in­validity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

(2) The petition seeking an administrative deter­mination under this section shall be in writing and shall state with particularity facts sufficient to show the person seeking relief is substantially affected by the rule and facts sufficient to show the invalidity of the rule. The petition shall be filed with the division which shall, immediately upon filing, forward copies of the petition to the agency whose rule is challenged, the Department of State, and the committee. Within 10 days after receiving the petition, the division di­rector shall, if he determines that the petition com­plies with the above requirements, assign a hearing officer who shall conduct a hearing within 30 days thereafter, unless the petition is withdrawn.

(3) Within 30 days after the hearing, the hearing officer shall render his decision and state the reasons therefor in writing. The division shall forthwith transmit copies of the hearing officer's decision to the Department of State and to the committee. The hearing officer may declare all or part of a rule inval­id. The rule or part thereof declared invalid shall be­come void when the time for filing an appeal expires or at a later date specified in the decision. The agen­cy whose rule has been declared invalid in whole or part shall give notice of the decision in the Florida Administrative Weekly in the first available issue af­ter the rule has become void.

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Ch.120 ADMINISTRATIVE PROCEDURE ACT F.S. 1981

(4) Challenges to the validity of an emergency rule shall be subject to the following time schedules. Within 7 days after receiving the petition, the divi­sion director shall, if he determines that the petition complies with subsection (2) , assign a hearing officer who shall conduct a hearing within 14 days thereaf­ter, unless the petition is withdrawn. Within 14 days after the hearing, the hearing officer shall render his decision and otherwise comply with the provisions of subsection (3) not inconsistent herewith.

(5) Hearings held under this provision shall be conducted in the same manner as provided in s. 120.57 except that the hearing officer's order shall be final agency action. The petitioner and the agency whose rule is attacked shall be adversary parties. Other substantially affected persons may join the proceedings as parties or intervenors on appropriate terms which shall not unduly delay the proceedings. Failure to proceed under this section shall not consti­tute failure to exhaust administrative remedies.

His tory.-s. I, ch. 74-310; s. 5, ch. 75-191; s. 6, ch. 76-131; s. 1, ch. 77-174; s. 4, ch. 78-425. cf.- s. 72.011 Jurisdiction of circuit courts in specific ta:r. matters.

120.565 Declaratory statement by agencies. -Each agency shall provide by rule the procedure for the filing and prompt disposition of petitions for declaratory statements. A declaratory statement shall set out the agency's opinion as to the applicabil­ity of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his particular set of circumstances only. The agency shall give notice of each petition and its disposition in the Florida Administrative Weekly, except that educational units shall give notice in the same man­ner as provided for rules ins. 120.54(1)(a), and trans­mit copies of each petition and its disposition to the committee. Agency disposition of petitions shall be final agency action.

His tor y.-s. 6, ch. 75-191; s. 7, ch. 76-131; s. 5, ch. 78-425; s. 5, ch. 79-299. cf.-s. 72.0 11 J urisd iction of circuit courts in specific tax matters.

120.57 Decisions which affect substantial interests.-The provisions of this section shall ap­ply in all proceedings in which the substantial inter­ests of a party are determined by an agency. Unless waived by all parties, subsection (1) shall apply whenever the proceeding involves a disputed issue of material fact. Unle~>s otherwise agreed, subsection (2) shall apply in all other cases.

(1) FORMAL PROCEEDINGS.-(a) A hearing officer assigned by the division

shall conduct all hearings under this subsection, ex­cept for:

1. Hearings before agency heads or a member thereof other than an agency head or a member of an agency head within the Department of Professional Regulation;

2. Hearings before the Unemployment Appeals Commission in unemployment compensation ap­peals, unemployment compensation appeals referees, and special deputies pursuant to s. 443.141;

3. Hearings regarding drivers' licensing pursuant to chapter 322;

4. Hearings conducted within the Department of

Health and Rehabilitative Services in the execution of those social and economic programs administered by the former Division of Family Services of said de­partment prior to the reorganization effected by chapter 75-48, Laws of Florida;

5. Hearings in which the division is a party, in which case an attorney assigned by the Administra­tion Commission shall be the hearing officer;

6. Hearings which involve student disciplinary suspensions or expulsions and which are conducted by educational units;

7. Hearings of the Public Employees Relations Commission in which a determination is made of the appropriateness of the bargaining unit, as provided in s. 447.307; and

8. Hearings held by the Department of Agricul­ture and Consumer Services pursuant to chapter 601.

(b) In cases to which this subsection is applicable, the following procedures shall apply:

1. Requests for hearings shall be granted or de­nied within 15 days of receipt.

2. All parties shall be afforded an opportunity for a hearing after reasonable notice of not less than 14 days; however, the 14-day notice requirement may be waived with the consent of all parties. In preliminary hearings for the revocation of parole, no less than 7 days' notice shall be given. In parole revocation hear­ings pursuant toss. 949.10 and 949.11, reasonable no­tice of not less than 5 days shall be given. In hearings involving student disciplinary suspensions or expul­sions conducted by educational units, the 14-day no­tice requirement may be waived by the agency head or the hearing officer without the consent of the par­ties. The notice shall include:

a. A statement of the time, place, and nature of the hearing.

b. A statement of the legal authority and jurisdic­tion under which the hearing is to be held.

c. A reference to the particular sections of the statutes and rules involved.

d. A short and plain statement of the matters as­serted by the agency and by all parties of record at the time notice is given. If the agency or any party is unable to state the matters in sufficient detail at the time initial notice is given, the notice may be limited to a statement of the issues involved, and thereafter, upon timely written application, a more definite and detailed statement shall be furnished not less than 3 days prior to the date set for the hearing.

3. Except for proceedings conducted as pre­scribed ins. 120.54(4) or s. 120.56, all petitions or re­quests for hearings under this section shall be filed with the agency. If the agency elects to request a hearing officer from the division, it shall notify the division within 10 days of receipt of the petition or request, requesting the assignment of a hearing offi­cer and, with the concurrence of the division, set the time, date, and place of the hearing. On request of any agency, the division shall assign hearing officers with due regard to the expertise required for the par­ticular matter. Any party may request the disqualifi­cation of any hearing officer by filing an affidavit with the division prior to the taking of evidence at a hearing, stating the grounds with particularity.

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F.S. 1981 ADMINISTRATIVE PROCEDURE ACT Ch.120

4. All parties shall have an opportunity to re­spond, to present evidence and argument on all issues involved, to conduct cross-examination and submit rebuttal evidence, to submit proposed findings of facts and orders, to file exceptions to any order or hearing officer's recommended order, and to be rep­resented by counsel. When appropriate, the general public may be given an opportunity to present oral or written communications. If the agency proposes to consider such material, then all parties shall be given an opportunity to cross-examine or challenge or re­but it.

5. The record in cases governed by this subsec­tion shall consist only of:

a. All notices, pleadings, motions, and intermedi-ate rulings;

b. Evidence received or considered; c. A statement of matters officially recognized; d. Questions and proffers of proof and objections

and rulings thereon; e. Proposed findings and exceptions; f. Any decision, opinion, proposed or recommend­

ed order, or report by the officer presiding at the hearing;

g. All staff memoranda or data submitted to the hearing officer during the hearing or prior to its dis­position, after notice of the submission to all parties, except communications by advisory staff as permit­ted under s. 120.66(1), if such communications are public records;

h. All matters placed on the record after an ex parte communication pursuant to s. 120.66(2); and

i. The official transcript. 6. The agency shall accurately and completely

preserve all testimony in the proceeding, and, on the request of any party, it shall make a full or partial transcript available at no more than actual cost.

7. Findings of fact shall be based exclusively on the evidence of record and on matters officially rec­ognized.

8. Except as provided in subparagraph 12., the hearing officer shall complete and submit to the agency and all parties a recommended order consist­ing of his findings of fact, conclusions of law, inter­pretation of administrative rules, recommended pen­alty, if applicable, and any other information re­quired by law or agency rule to be contained in the fi­nal order. The agency shall allow each party at least 10 days in which to submit written exceptions to the recommended order.

9. The agency may adopt the recommended order as the agency's final order. The agency in its final or­der may reject or modify the conclusions of law and interpretation of administrative rules in the recom­mended order, but may not reject or modify the find­ings of fact unless the agency first determines from a review of the complete record, and states with partic­ularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept or reduce the recommended pen­alty in a recommended order, but may not increase it without a review of the complete record. In the event a court reverses an agency's order, the court in its

discretion may award attorney's fees and costs to the aggrieved prevailing party.

10. If the hearing officer assigned to a hearing be­comes unavailable, the division shall assign .another hearing officer who shall use any existing record and receive any additional evidence or argument, if any, which the new hearing officer finds necessary.

11. A hearing officer who is a member of an agen­cy head may participate in the formulation of the agency's final order, provided he has completed all his duties as hearing officer.

12. In applications for a license or mergers pursu­ant to title XXXVIII which are referred by the agen­cy to the division for hearing pursuant to this section, the hearing officer shall complete and submit to the agency and to all parties a written report consisting of findings of fact and rulings on evidentiary matters. The agency shall allow each party at least 10 days in which to submit written exceptions to the report.

(2) INFORMAL PROCEEDINGS.-In cases to which subsection (1) does not apply:

(a) The agency shall, in accordance with its rules of procedure:

1. Give reasonable notice to affected persons or parties of the agency's action, whether proposed or already taken, or of its decision to refuse action, to­gether with a summary of the factual, legal, and poli­cy grounds therefor.

2. Give affected persons or parties or their coun­sel an opportunity, at a convenient time and place, to present to the agency or hearing officer written or oral evidence in opposition to the agency's action or refusal to act, or a written statement challenging the grounds upon which the agency has chosen to justify its action or inaction.

3. If the objections of the persons or parties are overruled, provide a written explanation within 7 days. ·

(b) The record shall only consist of: 1. The notice and summary of grounds; 2. Evidence received or considered; 3. All written statements submitted by persons

and parties; 4. Any decision overruling objections; 5. All matters placed on the record after an ex

parte communication pursuant to s. 120.66(2); and 6. The official transcript. (3) Unless precluded by law, informal disposition

may be made of any proceeding by stipulation, agreed settlement, or consent order.

(4) This section shall not apply to agency investi­gations preliminary to agency action.

History.-s. 1, ch. 74-310; s. 7, ch. 75-191; s. 8, ch. 76-131 ; s. 1, ch. 77-174; s. 5, ch. 77-453; ss. 6, 11 , ch. 78-95; s. 6, ch. 78-425; s. 8, ch. 79-7; s. 7, ch. 80-95; s. 4, ch. 80-289; s. 57, ch. 81 -259. cf.-s. 72.0ll Jurisdiction of circuit courts in specific tax matters.

120.575 Taxpayer contest proceedings.­(!) In any administrative proceeding brought

pursuant to chapter 120 as authorized ins. 72.011(1), the taxpayer or other substantially affected party shall be designated the "petitioner" and the Depart­ment of Revenue shall be designated the "respon­dent."

(2) In any administrative proceeding brought

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Ch. 120 ADMINISTRATIVE PROCEDURE ACT F.S. 1981

pursuant to s. 120.57, the department's burden of proof, except as otherwise specifically provided by general law, shall be limited to a showing that an as­sessment has been made against the taxpayer and the factual and legal grounds upon which the department made the assessment.

History.-s. 12, ch. 81-178.

120.58 Agency action; evidence, record and subpoenas.-

(!) In agency proceedings for a rule or order: (a) Irrelevant, immaterial, or unduly repetitious

evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admis­sible, whether or not such evidence would be admissi­ble in a trial in the courts of Florida. Any part of the evidence may be received in written form, and all tes­timony of parties and witnesses shall be made under oath. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. This paragraph applies only to proceedings under s. 120.57.

(b) An agency or its duly empowered presiding officer or a hearing officer has the power to swear witnesses and take their testimony under oath, to is­sue subpoenas upon the written request of any party or upon its own motion, and to effect discovery on the written request of any party by any means avail­able to the courts and in the manner provided in the Florida Rules of Civil Procedure. However, no agency or its duly empowered presiding officer or any hear­ing officer has the authority to issue any subpoena or order directing discovery to any member or employee of the Legislature when the subpoena or order com­mands the production of documents or materials or compels testimony relating to the legislative duties of the member or employee. Any subpoena or order di­recting discovery directed to a member or an employ­ee of the Legislature shall show on its face that the testimony sought does not relate to legislative duties.

(c) Any public employee subpoenaed to appear at an agency proceeding shall be entitled to per diem and travel expenses at the same rate as that provided for state employees under s. 112.061 if travel away from such public employee's headquarters is re­quired. All other witnesses appearing pursuant to a subpoena shall be paid such fees and mileage for their attendance as is provided in civil actions in cir­cuit courts of this state. In the case of a public em­ployee, such expenses shall be processed and paid in the manner provided for agency employee travel ex­pense reimbursement, and in the case of a witness who is not a public employee, payment of such fees and expenses shall accompany the subpoena.

(d) Documentary evidence may be received in the form of a copy or excerpt if the original is not readily available. Upon request, parties shall be given an op­portunity to compare the copy with the original.

(e) If a majority of those who are to render the fi­nal order have not heard the case or read the record, a decision adverse to a party other than the agency it­self shall not be made until a proposed order is

served upon the parties and they are given an oppor­tunity to file exceptions and present briefs and oral arguments to those who are to render the decision. The proposed order shall contain necessary findings of fact and conclusions of law and a reference to the source of each. The proposed order shall be prepared by the individual who conducted the hearing, if avail­able, or by one who has read the record. The parties by written stipulation may waive compliance with this paragraph. The provisions of this paragraph shall not apply in the granting of parole or prelimi­nary hearings for the revocation of parole.

(f) A party shall be permitted to conduct cross-examination when testimony is taken or docu­ments are made a part of the record.

(2) Any person subject to a subpoena or order di­recting discovery may, before compliance and on timely petition, request the agency having jurisdic­tion of the dispute to invalidate the subpoena or or­der on the ground that it was not lawfully issued, is unreasonably broad in scope, or requires the produc­tion of irrelevant material, but the decision of the agency on any such request shall not be proposed agency action governed by s. 120.57.

(3) An agency may seek enforcement of a subpoe­na or order directing discovery issued under the au­thority of this act by filing a petition for enforce­ment, pursuant to s. 120.69, in the circuit court of the judicial circuit wherein the person failing to comply with the subpoena or order resides. A failure to com­ply with an order of the court shall result in a finding of contempt of court. However, no person shall be in contempt while the subpoena or order is being chal­lenged under subsection (2). In the absence of agency action on the default within 30 days, the party re­questing the subpoena or order may bring proceed­ings in an appropriate court for enforcement of the subpoena or order, and a failure to comply with an order of the court shall result in a finding of con­tempt of court.

History.-s. 1, ch. 74-310; s. 8, ch. 75-191; 8. 9, ch. 76-131; 8. 7, ch. 78-425.

120.59 Orders.-(!) The final order in a proceeding which affects

substantial interests shall be in writing or stated in the record and include findings of fact and conclu­sions of law separately stated, and it shall be ren­dered within 90 days:

(a) After the hearing is concluded, if conducted by the agency,

(b) After a recommended order is submitted to the agency and mailed to all parties, if the hearing is conducted by a hearing officer, or

(c) After the agency has received the written and oral material it has authorized to be submitted, if there has been no hearing.

The 90-day period may be waived or extended with the consent of all parties.

(2) Findings of fact, if set forth in a manner which is no more than mere tracking of the statutory language, shall be accompanied by a concise and ex­plicit statement of the underlying facts of record which support the findings. If, in accordance with agency rules, a party submitted proposed findings of

554

F.S. 1981 ADMINISTRATIVE PROCEDURE ACT Cb.120

fact or filed any written application or other request in connection with the proceeding, the order shall in­clude a ruling upon each proposed finding and a brief statement of the grounds for denying the application or request.

(3) If an agency head finds that an immediate danger to the public health, safety, or welfare re­quires an immediate final order, it shall recite with particularity the facts underlying such finding in the final order, which shall be appealable or enjoinable from the date rendered.

(4) Parties shall be notified either personally or by mail of any order, and, unless waived, a copy of the final order shall be delivered or mailed to each party or to his attorney of record.

History.-s. 1, ch. 74-310; s. 1, ch. 77-174.

120.60 Licensing.-(!) Unless otherwise provided by statute enacted

subsequent to the effective date of this act, licensing is subject to the provisions of s. 120.57.

(2) When an application for a license is made as required by law, the agency shall conduct the pro­ceedings required with reasonable dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons. Within 30 days after re­ceipt of an application for a license, the agency shall examine the application, notify the applicant of any apparent errors or omissions, and request any addi­tional information the agency is permitted by law to require. Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely no­tified the applicant within this 30-day period. The agency shall notify the applicant if the activity for which he seeks a license is exempt from the licensing requirement and return any tendered application fee within 30 days after receipt of the original applica­tion or within 10 days after receipt of the timely re­quested additional information or correction of errors or omissions. Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions unless a shorter period of time for agency action is provided by law. The 90-day or shorter time period shall be tolled by the initiation of a proceeding under s. 120.57 and shall resume 10 days after the recommended order is submitted to the agency and the parties. Any application for a license not ap­proved or denied within the 90-day or shorter time period, within 15 days after conclusion of a public hearing held on the application, or within 45 days af­ter the recommended order is submitted to the agen­cy and the parties, whichever is latest, shall be deemed approved and, subject to the satisfactory completion of an examination, if required as a pre­requisite to licensure, the license shall be issued. The Public Service Commission, when issuing a license, and any other agency, if specifically exempted by law, shall be exempt from the time limitations within this subsection. Each agency, upon issuing or denying a license, shall state with particularity the grounds or basis for the issuance or denial of same, except where issuance is a ministerial act. On denial of a license ap-

plication on which there has been no hearing, the de­nying agency shall inform the applicant of any right to a hearing pursuant to s. 120.57.

(3) The provisions of subsection (2) notwith­standing, every application for a certificate of author­ity as required by s. 624.401 shall be approved or de­nied within 180 days after receipt of the original ap­plication. Any application for such a certificate of au­thority not approved or denied within the 180-day period, or within 30 days after conclusion of a public hearing held on the application, shall be deemed ap­proved, subject to the satisfactory completion of con­ditions required by statute as a prerequisite to li­cense.

(4) In proceedings for the issuance, denial, renew­al, or amendment of a license or approval of a merger pursuant to title XXXVIII:

(a) 1. The Department of Banking and Finance shall have published in the Florida Administrative Weekly notice of the application within 21 days of re­ceipt.

2. Within 21 days of publication of notice, any person may request a hearing, which upon request shall be conducted pursuant to s. 120.57 except that the Department of Banking and Finance shall by rule provide for participation by the general public; how­ever, failure to request a hearing within 21 days of publication of notice shall constitute waiver of any right to a hearing.

(b) Should a hearing be requested pursuant to subparagraph 2. of paragraph (a), the applicant or li­censee shall publish at his own cost a notice of the hearing in a newspaper of general circulation in the area affected by the application. The Department of Banking and Finance may by rule specify the format and size of such notice.

(c) Notwithstanding subsection (2), every appli­cation for license for a new bank, new trust company, new credit union, or new savings and loan associa­tion, and every application for acquisition of majority control of a bank, trust company, or savings and loan association involving a foreign national, shall be ap­proved or denied within 180 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions. Any application for such a license or for acquisition of such control not approved or denied within the 180-day period or within 30 days after conclusion of a public hearing on the application, whichever is the latest, shall be deemed approved subject to the satisfactory completion of conditions required by statute as a prerequisite to license and approval of insurance of accounts for a new bank, a new savings and loan association, or a new credit union by the appropriate insurer.

(5) When a licensee has made timely and suffi­cient application for the renewal of a license which does not automatically expire by statute, the existing license shall not expire until the application has been finally acted upon by the agency or, in case the appli­cation is denied or the terms of the license limited, until the last day for seeking review of the agency or­der or a later date fixed by order of the reviewing court.

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Ch.120 ADMINISTRATIVE PROCEDURE ACT F.S.1981

(6) No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the entry of a final order, the agency has served, by per­sonal service or certified mail, an administrative com­plaint which affords reasonable notice to the licensee of facts or conduct which warrant the intended action and unless the licensee has been given an adequate opportunity to request a proceeding pursuant to s. 120.57. When personal service cannot be made and the certified mail notice is returned undelivered, the agency shall cause a short, simple notice to the licens­ee to be published once each week for 4 consecutive weeks in a newspaper published in the county of the licensee's last known address as it appears on the re­cords of the board. If no newspaper is published in that county, the notice may be published in a news­paper of general circulation in that county. If the ad­dress is in some state other than this state or in a for­eign territory or country, the notice may be published in Leon County.

(7) If the agency finds that immediate serious danger to the public health, safety, or welfare re­quires emergency suspension, restriction, or limita­tion of a license, it shall show compliance in its order with the requirements imposed by s. 120.54(9) on agencies making emergency rules. Summary suspen­sion, restriction, or limitation may be ordered, but a formal suspension or revocation proceeding under this section shall also be promptly instituted and act­ed upon.

(8) If the Administration Commission grants an exemption from any provision of this section as pro­vided in s. 120.63, the exemption shall be for a single application only and shall not be renewable.

(9) This section shall not apply to certification of employee organizations pursuant to s. 447.307.

History.-s. I, ch. 74-310; s. 10, ch. 76-131; s. I , ch. 77-174; ss. 6, 9, ch. 77-453; s. 57, ch. 78-95; s. 8, ch. 78-425; s. I, ch. 79-142; s. 6, ch. 79-299; s. 2, ch. 81 -180. cf.-s. 403.815 Public notice; waiver of hearings.

120.61 Official recognition.-When official recognition is requested, the parties shall be notified and given an opportunity to examine and contest the material.

History.- s. 1, ch. 74-310.

120.62 Agency investigations.-(!) No process, requirement of a report, inspec­

tion, or other investigative act or demand shall be is­sued, made, or enforced in any manner or for any purpose except as authorized by law. Every person who responds to a request or demand by any agency or representative thereof for written data or an oral statement shall be entitled to a transcript of his oral statement at no more than cost.

(2) Any person compelled to appear, or who ap­pears voluntarily, before any hearing officer or agen­cy in an investigation or in any agency proceeding has the right, at his own expense, to be accompanied, rep­resented, and advised by counsel or by other quali­fied representatives.

His tory.-s. I , ch. 74-310.

' tration Commission may exempt any process or pro-ceeding governed by this act from one or more re­quirements of this act:

(a) When the agency head has certified that the requirement would conflict with any provision of fed­erallaw or rules with which the agency must comply;

(b) In order to permit persons in the state to re­ceive tax benefits or federal funds under any federal law; or

(c) When the commission has found that confor­mity with the requirements of the part or parts of this act for which exemption is sought would be so in­convenient or impractical as to defeat the purpose of the agency proceeding involved or the purpose of this act and would not be in the public interest in light of the nature of the intended action and the enabling act or other laws affecting the agency.

(2) The commission may not exempt an agency from any requirement of this act pursuant to this sec­tion until it establishes alternative procedures to achieve the agency's purpose which shall be consis­tent, insofar as possible, with the intent and purpose of the act.

(a) Prior to the granting of any exemption autho­rized by this section, the commission shall hold a public hearing after notice given as provided in s. 120.54(1). Upon the conclusion of the hearing, the commission, through the Executive Office of the Governor, shall issue an order specifically granting or denying the exemption and specifying any processes or proceedings exempted and the extent of the ex­emption; transmit to the committee and to the De­partment of State a copy of the petition, a certified copy of the order granting or denying the petition, and a copy of any alternative procedures prescribed; and give notice of the petition and the commission's response in the Florida Administrative Weekly.

(b) An exemption and any alternative procedure prescribed shall terminate 90 days following adjourn­ment sine die of the then-current or next regular leg­islative session after issuance of the exemption order, or upon the effective date of any subsequent legisla­tion incorporating the exemption or any partial ex­emption related thereto, whichever is earlier. The ex­emption granted by the commission shall be renew­able upon the same or similar facts not more than once. Such renewal shall terminate as would an origi­nal exemption.

History.- s. I , ch. 74-310; 8. 11, ch. 76-131; 8. I, ch. 77-53; s. 8, ch. 77-453; 8. 87, ch. 79-190; s. 7, ch. 79-299; s. 70, ch. 79-400; s. 58, ch. 81-2);9.

120.633 Division of Pari-mutuel Wagering; partial exemption from hearing and notice re­quirements.-The Division of Pari-mutuel Wager­ing is exempted from the hearing and notice require­ments of s. 120.57(1)(a) and (b), but only for stew­ards, judges, and boards of judges when the hearing is to be held for the purpose of the imposition of fines or suspensions as provided by rules of the Division of Pari-mutuel Wagering, but not for revocations, and only upon violations (1) through (6) below. The Divi­sion of Pari-mutuel Wagering shall adopt rules estab-

120.63 Exemption from act.- lishing alternative procedures, including a hearing (1) Upon application of any agency, the Adminis- upon reasonable notice, for the following violations:

556

F.S. 1981 ADMINISTRATIVE PROCEDURE ACT Ch.120

(1) Horse riding, harness riding, greyhound inter­ference, and jai alai game actions in violation of chap­ters 550 and 551.

(2) Application and usage of drugs and medica­tion to horses, greyhounds, and jai alai players in vio­lation of chapters 550 and 551.

(3) Maintaining or possessing any device which could be used for the injection or other infusion of a prohibited drug to horses, greyhounds, and jai alai players in violation of chapters 550 and 551.

(4) Suspensions under reciprocity agreements be­tween the Division of Pari-mutuel Wagering and reg­ulatory agencies of other states.

(5) Assault or other crimes of violence on prem­ises licensed for pari-mutuel wagering.

(6) Prearranging the outcome of any race or game.

History.-s. I, ch. 77-53; s. 7, ch. 79-299. Note.-Former s. 120.63(3).

120.65 Hearing officers.-(!) There is hereby created the Division of Ad­

ministrative Hearings within the Department of Ad­ministration, to be headed by a director who shall be appointed by the Administration Commission and confirmed by the Senate. The division shall be ex­empt from the provisions of chapter 216. The De­partment of Administration shall provide adminis­trative support and service to the division. The divi­sion shall not be subject to control, supervision, or di­rection by the Department of Administration.

(2) The division shall employ full-time hearing officers to conduct hearings required by this chapter or other law. No person may be employed by the divi­sion as a full-time hearing officer unless he has been a member of The Florida Bar in good standing for the preceding 5 years.

(3) If the division cannot furnish a division hear­ing officer promptly in response to an agency request, the director shall designate in writing a qualified full-time employee of an agency other than the re­questing agency to conduct the hearing. The director shall have the discretion to designate a hearing offi­cer who is a qualified full-time employee of an agency other than the requesting agency which is located in that part of the state where the parties and witnesses reside.

(4) The director shall have the discretion to des­ignate qualified laypersons to conduct hearings. If a layperson is so designated, the director shall assign a hearing officer to assist in the conduct of the hearing

(7) The division shall have the authority to adopt reasonable rules to carry out the provisions of this act.

History.-8. I, ch. 74-310; 8. 9, ch. 75-191; 8. 14, ch. 76-131; 8. 9, ch. 78-425; 8. 46, ch. 79-190.

120.66 Ex parte communications.-(!) In any proceeding under s. 120.57, no ex parte

communication relative to the merits, threat, or offer of reward shall be made to the agency head, after the agency head has received a recommended order, or to the hearing officer by:

(a) An agency head or member of the agency or any other public employee or official engaged in pros­ecution or advocacy in connection with the matter under consideration or a factually related matter.

(b) A party to the proceeding or any person who, directly or indirectly, would have a substantial inter­est in the proposed agency action, or his authorized representative or counsel.

Nothing in this subsection shall apply to advisory staff members who do not testify on behalf of the agency in the proceeding or to any rulemaking pro­ceedings under s. 120.54.

(2) A hearing officer who is involved in the deci­sional process and who receives an ex parte commu­nication in violation of subsection (1) shall place on the record .of the pending matter all written commu­nications received, all written responses to such com­munications, and a memorandum stating the sub­stance of all oral communications received and all oral responses made, and shall also advise all parties that such matters have been placed on the record. Any party desiring to rebut the ex parte communica­tion shall be allowed to do so, if such party requests the opportunity for rebuttal within 10 days after no­tice of such communication. The hearing officer may, if he deems it necessary to eliminate the effect of an ex parte communication received by him, withdraw from the proceeding, in which case the division shall assign a successor.

(3) Any person who makes an ex parte communi­cation prohibited by subsection (1), and any hearing officer who fails to place in the record any such com­munication, is in violation of this act and may be as­sessed a civil penalty not to exceed $500 or be sub­jected to such other disciplinary action as his superi­ors may determine.

History.- 8. I, ch. 74-310; 8. 10, ch. 75-191; 8. 12, ch. 76-131 ; 8. I, ch. 77-174; 8. 10, ch. 78-425.

and to rule upon proffers of proof, questions of evi- 120.68 Judicial review.-dence, disposition of procedural requests, and similar (1) A party who is adversely affected by final matters. agency action is entitled to judicial review. For pur-

(5) By rule, the division may establish: poses of this section, a district school board, whose (a) Further qualifications for hearing officers and decision is reviewed under the provisions of s. 231.36

shall establish procedures by which candidates will and whose final action is modified by a superior ad­be considered for employment or contract. ministrative decision, shall be a party entitled to ju­

(b) The manner in which public notice will be dicial review of the final action. A preliminary, proce-given of vacancies in the staff of hearing officers. dural, or intermediate agency action or ruling is im-

(c) Procedures for the assignment of hearing offi- mediately reviewable if review of the final agency de-cers. cision would not provide an adequate remedy.

(6) The division is authorized to provide hearing (2) Except in matters for which judicial review by officers on a contract basis to any governmental enti- the Supreme Court is provided by law, all proceed­ty to conduct any hearing not covered by this section. ings for review shall be instituted by filing a petition

557

Ch.l20 ADMINISTRATIVE PROCEDURE ACT F.S.l981

in the district court of appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review proceedings shall be conducted in accordance with the Florida Appellate Rules.

(3) The filing of the petition does not itself stay enforcement of the agency decision, but if the agency decision has the effect of suspending or revoking a li­cense, supersedeas shall be granted as a matter of right upon such conditions as are reasonable, unless the court, upon petition of the agency, determines that a supersedeas would constitute a probable dan­ger to the health, safety, or welfare of the state. The agency may also grant a stay upon appropriate terms, but, whether or not the action has the effect of sus­pending or revoking a license, a petition to the agen­cy for a stay shall not be a prerequisite to a petition to the court for supersedeas. In any event, the order shall specify the conditions, if any, upon which the stay or supersedeas is granted.

(4) Judicial review of any agency action shall be confined to the record transmitted and any additions made thereto in accordance with subsection (6).

(5) The record for judicial review shall consist of the following:

(a) The agency's written document expressing the order, the statement of reasons therefor, if issued, and the record under s. 120.57, if review of proceed­ings under that section is sought.

(b) The agency's written document expressing the action, the statement of reasons therefor, if is­sued, and the materials considered by the agency un­der s. 120.54, if review is sought of proceedings under that section.

(c) The agency's written document expressing the action, and other written documents identified by the agency as having been considered by it before its ac­tion and used as a basis for its action, if review is sought of proceedings under s. 120.56 or s. 120.565 or if there has been no proceeding under s. 120.54 or s. 120.57.

(6) When there has been no hearing prior to agency action and the reviewing court finds that the validity of the action depends upon disputed facts, the court shall order the agency to conduct a prompt, factfinding proceeding under this act after having a reasonable opportunity to reconsider its determina­tion on the record of the proceedings.

(7) The reviewing court shall deal separately with disputed issues of agency procedure, interpretations of law, determinations of fact, or policy within the agency's exercise of delegated discretion.

(8) The court shall remand the case for further agency action if it finds that either the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure. Failure of any agency to comply with s. 120.53 shall be presumed to be a material error in procedure.

(9) If the court finds that the agency has errone­ously interpreted a provision of law and that a cor­rect interpretation compels a particular action, it shall:

(a) Set aside or modify the agency action, or

(b) Remand the case to the agency for further ac­tion under a correct interpretation of the provision of law.

(10) If the agency's action depends on any fact found by the agency in a proceeding meeting the re­quirements of s. 120.57 of the act, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. The court shall, however, set aside agency action or remand the case to the agency if it finds that the agency's action depends on any finding of fact that is not supported by competent substantial evidence in the record.

(11) If the agency's action depends on facts deter­mined pursuant to subsection (6), the court shall set aside, modify, or order agency action if the facts com­pel a particular action as a matter of law, or it may remand the case to the agency for further examina­tion and action within the agency's responsibility.

(12) The court shall remand the case to the agen­cy if it finds the agency's exercise of discretion to be:

(a) Outside the range of discretion delegated to the agency by law;

(b) Inconsistent with an agency rule, an officially stated agency policy, or a prior agency practice, if de­viation therefrom is not explained by the agency; or

(c) Otherwise in violation of a constitutional or statutory provision;

but the court shall not substitute its judgment for that of the agency on an issue of discretion.

(13)(a) The reviewing court's decision may be mandatory, prohibitory, or declaratory in form, and it shall provide whatever relief is appropriate irre­spective of the origi~al form of the petition. The court may:

1. Order agency action required by law, order agency exercise of discretion when required by law, set aside agency action, remand the case for further agency proceedings, or decide the rights, privileges, obligations, requirements, or procedures at issue be­tween the parties, and

2. Order such ancillary relief as the court finds necessary to redress the effects of official action wrongfully taken or withheld.

(b) If the court sets aside agency action or re­mands the case to the agency for further proceedings, it may make such interlocutory order as the court finds necessary to preserve the interests of any party and the public pending further proceedings or agency action.

(14) Unless the court finds a ground for setting aside, modifying, remanding, or ordering agency ac­tion or ancillary relief under a specified provision of this section, it shall affirm the agency's action.

History.-s. 1, ch. 74-310; s. 13, ch. 76-131; s. 38, ch. 77-104; s. I , ch. 77-174; s. 11, ch. 78-425. cf.-s. 72.011 Jurisdiction of circuit courts in specific tax matters.

120.69 Enforcement of agency action.­(1) Except as otherwise provided by statute: (a) Any agency may seek enforcement of an ac­

tion by filing a petition for enforcement, as provided in this section, in the circuit court where the subject matter of the enforcement is located.

558

F.S. 1981 ADMINISTRATIVE PROCEDURE ACT Ch.120

(b) A petition for enforcement of any agency ac­tion may be filed by any substantially interested per­son who is a resident of the state. However, no such action may be commenced:

1. Prior to 60 days after the petitioner has given notice of the violation of the agency action to the head of the agency concerned, the Attorney General, and any alleged violator of the agency action.

2. If an agency has filed, and is diligently prose­cuting, a petition for enforcement.

(c) A petition for enforcement filed by a nongov­ernmental person shall be in the name of the State of Florida on the relation of the petitioner, and the doc­trines of res judicata and collateral estoppel shall ap­ply.

(d) In an action brought under paragraph (b), the agency whose action is sought to be enforced, if not a party, may intervene as a matter of right.

(2) A petition for enforcement may request de­claratory relief; temporary or permanent equitable relief; any fine, forfeiture, penalty, or other remedy provided by statute; any combination of the forego­ing; or, in the absence of any other specific statutory authority, a fine not to exceed $1,000.

(3) After the court has rendered judgment on a petition for enforcement, no other petition shall be filed or adjudicated against the same agency action, on the basis of the same transaction or occurrence, unless expressly authorized on remand. The doc­trines of res judicata and collateral estoppel shall ap­ply, and the court shall make such orders as are nec­essary to avoid multiplicity of actions.

(4) In all enforcement proceedings: (a) If enforcement depends on any facts other

than those appearing in the record, the court may as­certain such facts under procedures set forth in s. 120.68(6).

(b) If one or more petitions for enforcement and a petition for review involving the same agency action are pending at the same time, the court considering the review petition may order all such actions trans­ferred to and consolidated in one court. Each party shall be under an affirmative duty to notify the court when it becomes aware of multiple proceedings.

(c) Should any party willfully fail to comply with an order of the court, the court shall punish him in accordance with the law applicable to contempt com­mitted by a person in the trial of any other action.

(5) In any enforcement proceeding the respon­dent may assert as a defense the invalidity of any rel­evant statute, the inapplicability of the administra­tive determination to respondent, compliance by the respondent, the inappropriateness of the remedy sought by the agency, or any combination of the fore­going. In addition, if the petition for enforcement is filed during the time within which the respondent could petition for judicial review of the agency action, the respondent may assert the invalidity of the agen­cy action.

(6) Notwithstanding any other provision of this section, upon receipt of evidence that an alleged vio­lation of an agency's action presents an imminent and substantial threat to the public health, safety, or welfare, the agency may bring suit for immediate temporary relief in an appropriate circuit court, and

the granting of such temporary relief shall not have res judicata or collateral estoppel effect as to further relief sought under a petition for enforcement relat­ing to the same violation.

(7) In any final order on a petition for enforce­ment the court may award to the prevailing party all or part of the costs of litigation and reasonable attor­ney's fees and expert witness fees, whenever the court determines that such an award is appropriate.

History.-s. 1, ch. 74-310.

120.70 Annual report.-Not later than Febru­ary 1 of each year, the division shall issue a written report to the Administrative Procedures Committee and the Administration Commission, including at least the following information:

(1) A summary of the extent and effect of agen­cies' utilization of hearing officers, court reporters, and other personnel in proceedings under this act.

(2) Recommendations for change or improvement in the Administrative Procedure Act or any agency's practice or policy with respect thereto.

History.-s. 1, ch. 74-310.

120.71 Disqualification of agency personnel.

(1) Notwithstanding the provisions of s. 112.3143, any individual serving alone or with others as an agency head shall be disqualified from serving in an agency proceeding for bias, prejudice, interest, or other causes for which a judge may be recused. If the disqualified individual holds his position by appoint­ment, the appointing power may appoint a substitute to serve in the matter from which the individual is disqualified. If the individual is an elected official, the Governor may appoint a substitute to serve in the matter from which the individual is disqualified.

(2) Any agency action taken by a duly appointed substitute for a disqualified individual shall be as conclusive and effective as if agency action had been taken by the agency as it was constituted prior to any substitution.

History.-s. 1, ch. 74-310; s. 12, ch. 78-425.

120.72 Legislative intent; prior proceedings and rules; exception.-

(1)(a) The intent of the Legislature in enacting this complete revision of chapter 120 is to make uni­form the rulemaking and adjudicative procedures used by the administrative agencies of this state. To that end, it is the express intent of the Legislature that chapter 120 shall supersede all other provisions in the Florida Statutes, 1977, relating to rulemaking, agency orders, administrative adjudication, licensing procedure, or judicial review or enforcement of ad­ministrative action for agencies as defined herein to the extent such provisions conflict with chapter 120, unless expressly provided otherwise by law subse­quent to January 1, 1975, except for marketing orders adopted pursuant to chapters 573 and 601.

(b) Unless expressly provided otherwise, a refer­ence in any section of the Florida Statutes to chapter 120 or to any section or sections or portion of a sec­tion of chapter 120 shall hereby include, and shall be understood as including, all subsequent amendments

559

Ch. 120 ADMINISTRATIVE PROCEDURE ACT F.S.1981

to chapter 120 or to the referenced section or sections or portions of a section.

(2) All administrative adjudicative proceedings conducted pursuant to any provision of the Florida Statutes which were begun prior to January 1, 1975, shall be continued to a conclusion, including judicial review, under the provisions of the Florida Statutes, 1973, except that administrative adjudicatory pro­ceedings which have not progressed to the stage of a hearing may, with the consent of all parties and the agency conducting the proceeding, be conducted in accordance with the provisions of this act as nearly as is feasible.

(3) Notwithstanding any provision of this chap­ter, all public utilities and companies regulated by the Public Service Commission shall be entitled to proceed under the interim rate provisions of chapter 364 or the procedures for interim rates contained in chapter 74-195, Laws of Florida, or as otherwise pro­vided by law.

(4)(a) All prior rules not adopted following a pub­lic hearing as provided by statute shall be void and unenforceable after October 1, 1975, and shall be stricken from the files of the Department of State and from the files of the adopting agency.

(b) Any rule in effect on, or filed with the Depart­ment of State prior to, January 1, 1975, except one adopted following a public hearing as provided by statute, shall be forthwith reviewed by the agency concerned on the written request of a person sub­stantially affected by the rule involved and this pro­vision. The agency concerned shall initiate the rule­making procedures provided by this act within 90 days after receiving such written request. If the agen­cy concerned fails to initiate the rulemaking proce­dures within 90 days, the operation of the rule shall be suspended. This provision shall control s. 120.54(5).

(c) All existing rules shall be indexed by January 1, 1975.

History.-s. 3, ch. 74-310; s. I , ch. 76-207; s. I, ch. 77-174; s. 57, ch. 78-95; s. 13, ch. 78-425.

120.721 Effect of chapter 75-22, Laws of Florida, on rules.-Any rule or regulation of a pub­lic agency involved in or affected by the reorganiza­tion of the executive agencies as set forth in chapter

75-22, Laws of Florida, which was valid when adopt­ed under the authority granted by the Legislature to adopt such rule, to the extent it is not inconsistent with chapter 75-22, Laws of Florida, shall remain in effect until it expires by its terms or is specifically re­pealed or revised as provided by law.

History.-s. 23, ch. 75-22.

120.722 Legislative intent of chapter 78-95, Laws of Florida.-

(1) The primary purpose of chapter 78-95, Laws of Florida, is to repeal or amend various provisions of the Florida Statutes containing procedural language superseded or made redundant by chapter 120 (the Administrative Procedure Act). Chapter 78-95 is de­signed to place the provisions affected into conformi­ty with chapter 120, except where expressly noted to the contrary.

(2) Any section or subunit of a section repealed by an act of any session shall remain repealed despite any amendment in chapter 78-95. Any act of the 1978 legislative session, other than one resulting from a re­viser's bill, that amends any provision affected by chapter 78-95 shall supersede chapter 78-95 to the extent that such amendment conflicts with chapter 78-95.

(3) Deletions of references to chapter 120 in chapter 78-95 do not imply that chapter 120 is not applicable; except where expressly noted otherwise, references to chapter 120 are deleted as unnecessary and repetitious. .

(4) Failure of chapter 78-95 to amend or repeal any provision in the Florida Statutes does not imply that that provision is not in conflict with, superseded by, or unnecessary in light of chapter 120.

History.-s. I , ch. 78-95.

120.73 Circuit court proceedings; declarato­ry judgments.-Nothing in this chapter shall be construed to repeal any provision of the Florida Stat­utes which grants the right to a proceeding in the cir­cuit court in lieu of an administrative hearing or to divest the circuit courts of jurisdiction to render de­claratory judgments under the provisions of chapter 86.

History.-s. II, ch. 75-191; s. 14, ch. 78-425.

560

F.S. 1981

121.011 121.021 121.025 121.031 121.045

121.046

121.051 121.0515

121.052

121.053

121.054

121.061 121.071 121.081 121.091 121.101 121.111 121.112

121.113

121.121

121.125

121.131

121.135

121.141 121.151 121.161 121.181 121.1815

121.191 121.192 121.20

121.22

121.23

121.24

FLORIDA RETIREMENT SYSTEM Ch.121

CHAPTER 121

FLORIDA RETIREMENT SYSTEM

Florida Retirement System. Definitions. Administrator; powers and duties. Administration of system; appropriation. Consolidation of liabilities and assets; ex-

isting systems. Merger of the Judicial Retirement Sys­

tem into the Florida Retirement Sys­tem Act.

Participation in the system. Special risk membership; criteria; desig­

nation and removal of classification; credits for past service and prior ser­vice.

Membership class of certain elected state officers.

Optional participation in the Elected State Officers' Class for retired mem­bers of any existing system.

Retirees precluded from joining other sys-tems.

Funding. Contributions. Past service; prior service; contributions. Benefits payable under the system. Cost-of-living adjustment of benefits. Credit for actual wartime service. Participation in system by legislators

elected pursuant to chapter 63-IX, Laws of Florida.

Participation in system by spouses of cer­tain elected officials.

Future service to include authorized leaves of absence.

Credit for workers' compensation pay­ments.

Benefits exempt from taxes and execu­tion.

Reports and surveys relative to local and state retirement systems.

Appropriation. Investments. Amendments. Effective date. Special pensions to individuals; adminis­

tration of laws by Department of Ad­ministration.

Special acts prohibited. State retirement actuary. Voluntary retirement with half pay au­

thorized for elective officers of cities or towns; appropriation.

State Retirement Commission; creation; membership; compensation.

Disability retirement and special risk membership applications; Retirement Commission; powers and duties; judi­cial review.

Conduct of commission business; legal and other assistance; compensation.

121.30 Statements of purpose and intent and other provisions required for qualifica­tion under the Internal Revenue Code of the United States.

121.011 Florida Retirement System.-(!) SHORT TITLE.-This chapter shall be

known and cited as the "Florida Retirement System Act."

(2) CONSOLIDATION OF EXISTING SYS­TEMS AND LAWS.-

(a) Any officer or employee who is elected, ap­pointed, or employed by the state or any subdivision thereof on or after December 1, 1970, shall not be eli­gible for membership, rights, or any privileges under chapters 122 (State and County Officers and Em­ployees' Retirement System) and 238 (retirement system for school teachers) and those sections of chapter 321 pertaining to highway patrol pensions and pension trust fund.

(b) The chapters or retirement system laws named in paragraph (a) are hereby consolidated as separate instruments appended to the "Florida Re­tirement System Act" established by this chapter, and the administration of said chapters or retirement systems shall be consolidated with the administra­tion of the Florida Retirement System established by this chapter.

(3) PRESERVATION OF RIGHTS.-(a) The rights of members of the retirement sys­

tems established by chapters 122, 238, and 321 shall not be impaired, nor shall their benefits be reduced by virtue of any part of this chapter, except that if an eligible member of a retirement system established by chapter 122, chapter 238, or chapter 321, elects be­tween April 15, 1971 and June 1, 1971, inclusive, to transfer to the Florida Retirement System, he shall be transferred to the Florida Retirement System on June 1, 1971 and shall be subject to the provisions of the Florida Retirement System established by this chapter and at retirement have his benefits calculat­ed in accordance with the provisions of s. 121.091.

(b) The rights of members of any retirement sys­tem established by local or special act or municipal ordinance shall not be impaired, nor shall their bene­fits be reduced by virtue of any part of this chapter, except that if an eligible member of any such retire­ment system elects to transfer to the Florida Retire­ment System in a referendum held in accordance with this chapter by the governing body administer­ing such local retirement system, he shall be trans­ferred to the Florida Retirement System on the date that his unit is accepted for membership therein and shall be subject to the provisions of the Florida Re­tirement System established by this chapter and at retirement have his benefits calculated in accordance with the provisions of s. 121.091. However, the gov­erning body shall vest the rights of employees of any existing local retirement system not electing to trans­fer to the Florida Retirement System. However, when any county, now or hereafter authorized by law to

561

Ch.121 FLORIDA RETIREMENT SYSTEM F.S. 1981

take over and perform the functions of a municipali­ty, exercises such power and takes over functions heretofore performed by a municipality, and as are­sult thereof municipal employees become county em­ployees and are paid salaries from county funds, such employees who are members, and elect to continue to be members, of a municipal retirement system shall not be eligible to participate in the Florida Retire­ment System unless said municipality elects to bring its employees under the Florida Retirement System. Such employees whose pension or retirement rights are otherwise preserved, who by merger, transfer, or assignment of governmental units or functions be­come county employees, shall not lose their munici­pal pension or retirement rights or any reserves ac­crued to their benefit during their period of employ­ment with a municipality, and the county is author­ized to pay into such municipal retirement system during the period that such employees remain as county employees the sums of money previously paid by the municipality for the benefits of such employ­ees and may make appropriate deductions from the employees' salaries to preserve their retirement bene­fits. However, such employees shall not have their pension contribution increased above the percentage previously being deducted by the municipality on be­half of such employees at the time they became coun­ty employees.

the member and the state, and such rights shall be le­gally enforceable as valid contract rights and shall not be abridged in any way.

(e) Any member of the Florida Retirement Sys­tem or any member of an existing system under chapter 121 on July 1, 1975, who is not retired and who is, has been, or shall be, suspended and reinstat­ed without compensation shall receive retirement service credit for the period of time from his date of suspension to his date of reinstatement, upon the member paying into the Retirement System Trust Fund the total cost of providing said retirement cred­it. The cost to the member shall be the total employ­er contributions plus the total employee contribu­tions, if applicable, paid to the Retirement Trust Fund for the pay period immediately preceding the period of suspension, prorated for the said period of suspension, plus interest thereon at a rate of 4 per­cent per annum compounded annually until July 1, 1975, and 6.5 percent interest thereafter until paid. If permitted by federal law, the member may pay into the Social Security Trust Fund the total cost, if any, of providing social security coverage for the period of suspension if any social security payments have been made by the employer for the benefit of the member during such period. Should there be any conflict as to payment for social security coverage, the payment for retirement service credit shall be made and retire­ment service credit granted regardless of such con­flict.

(f) The rights under an existing system of any former member of such system who has become a member of the Florida Retirement System, either by affirmative choice during any transfer period or by operation of the compulsory participation provisions of s. 121.051(1), are limited to those rights that exist­ed and were exercised in such system at the time par­ticipation in the system ceased. The rights of such member after transfer shall be subject to the provi­sions of the Florida Retirement System established by this chapter, and at retirement the member shall have his benefit calculated in accordance with s. 121.091. The provisions of this paragraph are declar­atory of the legislative intent upon the original enact­ment of this chapter and are hereby deemed to have been in effect from such date.

Hiotory.-s. I , ch. 70-112; s. I , ch. 71-82; s. I, ch. 71-353; s. I, ch. 74-302; s. I, ch. 75-160; s. I, ch. 77-174; s. 25, ch. 79-164; s. 4, ch. 79-377. '

(c) Any member of the Supreme Court Justices, District Courts of Appeal Judges, and Circuit Judges' Retirement System, chapter 123, who terminates his service as a justice or judge and accepts employment covered under this chapter and elects to transfer to the Florida Retirement System rather than retain his vested rights under chapter 123 may transfer to the Florida Retirement System. All contributions of such member, including matching contributions, shall be transferred from the judicial retirement trust fund to the system trust fund, and his normal retirement benefit shall conform with s. 121.091 from November 30, 1970, or from date of transfer thereafter. Any jus­tice or judge electing to transfer to the Florida Re­tirement System pursuant to the provisions of this paragraph may, at any time prior to retirement, pay for and receive credit for any service performed in any position covered by the existing systems as de­fined in this chapter for which he has not already re­ceived credit. The amount of such payments and the credit received for such service shall be the same as required for a member to obtain credit for prior ser­vice pursuant to s. 8(2), chapter 70-112, Laws of Flor- 121.021 Definitions.-The following words and ida, appearing as s. 121.081(2). Any justice or judge phrases as used in this chapter have the respective who elects to transfer to the Florida Retirement Sys- meanings set forth unless a different meaning is tern as provided herein and who retires under the plainly required by the context: provisions of this chapter shall be eligible for judicial (1) The masculine pronoun whenever used in this service pursuant to the applicable provisions of law if chapter shall include the feminine. he has had no less than 5 years of judicial service at (2) "Existing systems" means the State and the time of his retirement. County Officers and Employees' Retirement System,

(d) The rights of members of the retirement sys- the retirement system for school teachers, and the tern established by this chapter shall not be impaired highway patrol pensions and pension trust fund, by virtue of the conversion of the Florida Retirement which are consolidated ins. 121.011(2). On and after System to an employee noncontributory system. As July 1, 1972, the term "existing systems" shall also in­of July 1, 1974, the rights of members of the retire- elude the retirement system for justices and judges ment system established by this chapter are declared established by chapter 123 and as consolidated with to be of a contractual nature, entered into between the Florida Retirement System in s. 121.046.

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F.S. 1981 FLORIDA RETIREMENT SYSTEM Ch.121

(3) "System" means the general retirement sys­tem established by this chapter to be known and cit­ed as the "Florida Retirement System."

(4) "Division" means the Division of Retirement of the Department of Administration.

(5) "Administrator" means the director of the Di­vision of Retirement.

(6) "Actuary" or "state retirement actuary" means a fellow of the Society of Actuaries or a member of the American Academy of Actuaries or an organiza­tion of which one or more members is a fellow of the Society of Actuaries or a member of the American Academy of Actuaries or both.

(7) "City" means any municipality duly incorpo­rated under the laws of the state, if such municipality is eligible to participate under chapter 210 (tax on cigarettes).

(8) "Unit" means any department, division, or subdivision of a city or any classification of city em­ployees approved for social security coverage, as such, by the United States Department of Health and Human Services, not based on age, sex, or other classification resulting in higher than average costs for retirement benefits.

(9) "Special district" means an autonomous dis­trict or public body created by or pursuant to an act of the Legislature.

(10) "Employer" means any agency, branch, de­partment, institution, university, institution of higher education, or board of the state, or any county agency, branch, department, board, district school board, or special district of the state, or any city of the state which participates in the system for the benefit of certain of its employees.

(11) "Officer or employee" means any 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.

(12) "Member" means any officer or employee who is covered or who becomes covered under this system in accordance with this chapter. On and after December 1, 1970, all new members and those mem­bers transferring from existing systems shall be di­vided into two classes: "special risk members" (spe­cial risk officers or employees) and "regular members" (other than special risk officers or employees).

(13) "Disability in line of duty" means an injury or illness arising out of and in the actual performance of duty required by a member's employment during his regularly scheduled working hours or irregular working hours as required by the employer. The ad­ministrator may require such proof as he deems nec­essary as to the time, date, and cause of any such in­jury or illness, including evidence from any available witnesses. Workers' compensation records under the provisions of chapter 440 may also be used.

(14) "Death in line of duty" means death arising out of and in the actual performance of duty required by a member's employment during his regularly scheduled working hours or irregular working hours as required by the employer. The administrator may require such proof as he deems necessary as to the time, date, and cause of death, including evidence from any available witnesses. Workers' compensation

records under the provisions of chapter 440 may also be used.

(15)(a) Until October 1, 1978, "special risk mem­ber" means any officer or employee whose application is approved by the administrator and who receives salary payments for work performed as a peace offi­cer; law enforcement officer; policeman; highway pa­trolman; custodial employee at a correctional or de­tention facility; correctional agency employee whose duties and responsibilities involve direct contact with inmates, but excluding secretarial and clerical em­ployees; fireman; or an employee in any other job in the field of law enforcement or fire protection if the duties of such person are certified as hazardous by his employer.

(b) Effective October 1, 1978, "special risk mem­ber" means a member of the Florida Retirement Sys­tem who is designated as a special risk member by the division in accordance with s. 121.0515. Such member must be employed as a law enforcement offi­cer, a firefighter, or a correctional officer and must meet certain other special criteria as set forth in s. 121.0515.

(16) "Date of participation" means the date on which the officer or employee becomes a member.

(17) "Creditable seryice" of any member means the sum of his past service, prior service, military ser­vice, workers' compensation credit, and future service allowed within the provisions of this chapter if all re­quired contributions have been paid and all other re­quirements of this chapter have been met. However, in no case shall a member receive credit for more than a year's service during any 12-month period. Service as !loolied to a te!lcher or a nonacademic em­ployee of a school board shall be based on contract :'le!Y~ of.ewplo¥m~:nt or school term years of e19ploy­ment, as provided in chapters 122 and 238, (l.ather than 12-month periods of employmeni)For the pur­pose of this chapter, "creditable service shall include the period from November 1972 to January 1973 which would have been served by an elected county commissioner but for the enactment of chapter 67-510, Laws of Florida, if the inclusion of such peri­od would provide any person affected with sufficient creditable service to qualify for retirement benefits pursuant to this chapter.

(18) "Past service" of any member means the number of years and complete months and any frac­tional part of a month, recognized and credited by an employer and approved by the administrator, during which he was in the active employ of an employer prior to his date of participation.

(19) "Prior service" under this chapter means: (a) Service for which the member had credit un­

der one of the existing systems and received a refund of his contributions upon termination of employ­ment. Prior service shall also include that service be­tween December 1, 1970, and the date the system be­comes noncontributory for which the member had credit under the Florida Retirement System and re­ceived a refund of his contributions upon termination of employment. After the date the Florida Retire­ment System becomes noncontributory, prior service shall also include that service for which the member

563

Ch.121 FLORIDA RETIREMENT SYSTEM F.S. 1981

had credit under the noncontributory provisions upon termination of employment.

(b) Service prior to an employee's membership in the Florida Retirement System with an employer, ei­ther before or during the employer's participation in an existing system. The word "service" as used in this paragraph and paragraph (c) means employment ser­vice which, at the time it is claimed as prior service, satisfies the requirements for a regularly established position, as defined by rules of the Florida Retire­ment System.

(c) Service as described in paragraph (b) for which no contributions were made due to the fact that the employee made a written rejection of an ex­isting system. If such person withdraws his rejection, he may purchase retirement credit for all his service during the period of rejection. Any governmental en­tity may contribute up to 50 percent of the amount required to purchase any prior service under para­graph (b) and this paragraph.

(d) Service which was performed in a Florida Highway Patrol recruit training school or the Florida Highway Patrol Training Academy, prior to taking the constitutional oath of office, by any Florida high­way patrolman who was hired on or after July 1, 1945, and before January 1, 1967, and for which no retirement contributions were paid.

(20) "Military service" of any member means ac­tual "wartime service" in the Armed Forces of the United States, as defined by the Veterans Adminis­tration, or "wartime service" in the Allied Forces, not to exceed 4 years, if credit for such service has not been granted under any other federal or state system, and provided such service is not used in any other re­tirement system, as provided ins. 121.111.

(21) "Future service" of any member means ser­vice subsequent to date of the member's participa­tion and may include authorized leaves of absence as provided in s. 121.121.

(22) "Compensation" means the monthly s~&lary paid a member, ips;ludjpg Q.YertiJ:ne payments and bo­nuses paid from a salary fund, a~ ,wpm:tllsJ. by the em­ployer on the wage and tax statement (Internal Reve­nue Service form W -2) or any similar form. When a member's compensahon is derived from fees set by statute, compensation shall be the total cash remu­neration received from such fees. Under no circum­stances shall compensation include fees paid profes­sional persons for special or particular services.

(23) ".t\no~~l s;omgen~~&tion" means the Ul.ti!l f;tLan~~~~.;::o~~~er during a year. A "year"

(24) "A;frage fjpal Ca'QlPeQI?ation" means the av­erage annu compensation of the 5 best year§ of the last 10 years of creditable service prior to retirement, termination, or death. However, if requested by the member, "average final compensation" means the 5 best years of the member's total years of creditable service prior to retirement, termination, or death. For disability benefits, "average final compensation" means the average annual compensation of the total number of years of creditable service, not to exceed 5 if less than 10 years of creditable service have been completed. However, a member of the Legislature may use the average of the 5 years of highest com pen-

sation out of the last 10 years of creditable service prior to becoming a member of. the Legislature. Each year used in the calculation of average final compen­sation shall commence on an annual calendar anni­versary of the date of determination of such average final compensation. The payment for accumulated sick leave, whether paid as salary or otherwise, shall not be used in the calculation of the average final compensation.

(25) "~verage monthly compep:j{ltion" means one-twelfth of average final compensation.

(26) "Accumulated contributions" means the sum of:

(a) A member's contributions, without interest, subsequent to December 1, 1970; and

(b) The single sum amount the member would have received if he was covered by an existing system prior to December 1, 1970, and had terminated mem­bership in such system on November 30, 1970, sub­ject to reduction on account of benefit payments as provided under certain options.

(27) "Pension" means monthly payments to a re­tiree derived as provided in this chapter.

(28) "Beneficiary" means any person in receipt of a pension or other benefit as provided by this chap­ter.

(29) "~~ate" means the ~t ~y of ani! mgnth..£QlJQm,~ the date a member at­tains ~ of the following statuses:

(a) Completes 10 or more years of creditable ser-vic tains~

(b) Completes aD ]rearw of creditable service, which may include a maximum of 4 years of military service credit, so long as such credit is not claimed under any other system, regardless of age; or

(c) If a special risk member: 1. Completes 10 or more years of creditable ser­

vice and attains age 55; 2. Completes 25 continuous years of creditable

service, regardless of age; or 3. Completes 25 years of creditable service, which

may include a maximum of 4 years of military service credit, and attains age 52.

":r:fulma! retjrement age" is attained on the "normal rEl.tirem~p;date."

t30) "Earn retir~:mept,date" means the first day of the month following the da.!A.._a member completes UJ years of creditable service Wld e~ to receive re­tirement benefits in accordance wrrn this chapter. Such benefits shall be based on average monthly compensation and creditable service as of the mem­ber's early retirement date, and the benefit so com­puted shall be reduced by five-twelfths of 1 percent for each complete month by which the early retire­ment date precedes his normal retirement date as provided in s. 121.091(3).

(31) "Actuarial equivalent" means a benefit of equal value when computed at regular interest upon the basis of the mortality tables adopted by the ad­ministrator.

(32) "State agency" means the Division of Retire­ment of the Department of Administration within the provisions and contemplation of chapter 650.

564

F.S. 1981 FLORIDA RETIREMENT SYSTEM Ch. 121

(33) "Agreement" means that certain agreement entered into October 23, 1951, between the State of Florida and the Federal Security Administrator. (Chapter 650 implements the procedure to provide for social security coverage.)

(34) "Covered group" means the officers and em­ployees of an employer who become members under this chapter. "Covered group" applies also when the employer is a special district or city for which cover­age under this chapter is applied for by the employer and approved for social security coverage by the United States Secretary of Health and Human Ser­vices and approved by the administrator for member­ship under this chapter. Members of a municipal fire­fighters ' pension trust fund or a municipal police of­ficers' retirement trust fund, established in accord­ance with chapter 175 or chapter 185, respectively, shall be considered eligible for membership under this chapter only after holding a referendum and by affirmative majority vote electing coverage under this chapter.

(35) "Social security coverage" means old-age, survivors, disability, and health insurance, as provid­ed by the federal Social Security Act.

(36) "System Trust Fund" means the trust fund established in the State Treasury by this chapter for the purpose of holding and investing the contribu­tions paid by members and employers and paying the benefits to which members or their beneficiaries may become entitled. Other trust funds may be estab­lished in the State Treasury to administer the "System Trust Fund."

(37) "Social Security Trust Fund" means the trust fund established in the State Treasury by this chapter for the purpose of receiving the contributions paid by members and employers for payment to the Secretary of the Treasury. Other trust funds may be established to administer the "Social Security Trust Fund."

(38) "Continuous service" means creditable ser­vics: as a IDemher, beginnmg with the first day of em­ployment with an employer covered under a state-administered retirement system consolidated herein and continuing for as long as the member re­mains in an employer-employee relationship with an employer covered under this chapter. An absence of 1 calengar mQnth or more from an ewpfQ;iii:s:(aayr..Qll shall be considered,&.br.e.ak in continuous service4 x-

; cept For periods ol absence during which an ~c eJ;.;.e~~tmiP..·C.M:tinu~ist and such period of absence is creditable under this chapter or under one of the existing systems consolidated here­in\ A withdrawal of contributions will constitute a break in service. Continuous service shall also include past service purchased under this chapter, provided such service is continuous within this definition and the rules established by the administrator. The ad­ministrator may establish administrative rules and procedures for applying this definition to creditable service authorized under this chapter.

His tory.- s. 2, ch. 70-112; s. I, ch. 72-122; s. I, ch. 72-347; s. 2, ch. 72-388; s. 2, ch. 73-312; s. I, ch. 73-326; s. 42, ch. 73-333; s. 2, ch. 74-302; s. I, ch. 74-328; s. 3, ch. 75-248; s. I, ch. 76-226; s. I, ch. 77-174; ss. I, 4, ch. 77-467; ss. I , 6, ch. 77-469; s. I , ch. 78-308; s. 56, ch. 79-40; s. 5, ch. 80-126; s. 3, ch. 80-131; s. 8, ch. 80-242; s. I , ch. 80-243; s. 3, ch. 81 -214; s. 59, ch. 81 -259. cf.- s. 121.052 Membership class of certain elected state officers.

121.025 Administrator; powers and duties. -The director of the Division of Retirement shall be the administrator of the retirement and pension sys­tems assigned or transferred to the Division of Re­tirement by law and, upon delegation of such author­ity by the Secretary of Administration, shall have the authority to sign the contracts necessary to carry out the duties and responsibilities assigned by law to the Division of Retirement.

History.-s. I , ch. 75-248.

121.031 Administration of system; appropri­ation.-The Department of Administration, through the Division of Retirement, shall make such rules as are necessary for the effective and efficient adminis­tration of this system. The funds to pay the expenses for such administration are hereby appropriated from interest earned on investments made for the Retirement and Social Security Trust Funds and the assessments allowed under chapter 650. The admin­istrator shall cause an actuarial study of the system to be made at least once every 5 years and report the results of such study to the next session of the Legis­lature following completion of the study.

History.-s. 3, ch. 70-11 2; s. 2, ch. 75-248; s. 6, ch. 81-295.

121.045 Consolidation of liabilities and as­sets; existing systems.-

(1) Effective December 1, 1970, the existing sys­tems and the Florida Retirement System shall be consolidated and the system shall assume:

(a) All liabilities related to the payment of bene­fits to members and their beneficiaries; and

(b) All obligations in regard to funding and ad­ministering benefits accrued for the benefit of mem­bers, beneficiaries, and survivors.

(2) The administrator or trustees, where there may be a conflict in law, of the respective trust fund or funds held under the existing systems shall, as of December 1, 1970, cause to be transferred to the sys­tem trust funds all assets, including moneys, securi­ties, and other property accumulated to date, as 'Yell as all liabilities and obligations connected therewith. Upon such transfer of assets, liabilities, and obliga­tions, the administrator shall become th~ trustee of any trust fund or funds transferred to th1s system.

History.-s. 4, ch. 70-112.

121.046 Merger of the Judicial Retirement System into the Florida Retirement System Act.

(1) Any person who is elected or appointed to of­fice in this state as Supreme Court justice, district court of appeal judge, or circuit judge on or after July 1 1972, shall not be eligible for membership, rights, o~ any privileges under chapter 123, the Judicial Re­tirement System, unless such justice or judge is al­ready a member of said retirement system when elected or appointed to such office.

(2) Chapter 123, the Judicial Retirement System, is hereby merged as a separate instrument appended to chapter 121, the "Florida Retirement System Actt and the administration of said chapter 123, the Judi­cial Retirement System, shall be merged into the ad­ministration of the Florida Retirement System.

565

Ch. 121 FLORIDA RETIREMENT SYSTEM F.S.1981

(3) The rights of members of the Judicial Retire­ment System established by chapter 123 shall not be impaired, nor shall their benefits be reduced, by vir­tue of any provision of this act or any provision of the Florida Retirement System Act, except that if a member of the Judicial Retirement System, other­wise eligible, elects, prior to June 30, 1973, to transfer to the Florida Retirement System, he shall be trans­ferred to the Florida Retirement System and, from the date his transfer becomes effective, shall be sub­ject to the provisions of the Florida Retirement Sys­tem established by chapter 121, together with any relevant provisions of this act and shall have his ben­efits calculated accordingly.

(4) Any member of the Judicial Retirement Sys­tem who elects to transfer to the Florida Retirement System, and every Supreme Court justice, district court of appeal judge, or circuit judge who is elected or appointed to judicial office on or after July 1, 1972, who is not already a member of the Judicial Retire­ment System when elected or appointed to such of­fice, shall be subject to the provisions of chapter 121 and of this act which are not in conflict or inconsis­tent with the provisions of Art. V of the State Consti­tution, and any retired member on temporary judi­cial assignment shall continue to receive his retire­ment benefits and such other compensation as may be authorized by s. 25.073, and Art. V of the State Constitution.

(5)(a) Effective July 1, 1972, the Judicial Retire­ment System established by chapter 123 shall be merged into chapter 121, the Florida Retirement Sys­tem Act, and the Florida Retirement System shall as­sume:

1. All liabilities related to the payment of bene­fits to members and their beneficiaries;

2. The administration and payment of benefits now accrued or which may accrue in the future for the benefit of members, beneficiaries and survivors; and

3. All obligations in regard to funding, including any actuarial deficit which may now or hereafter ex­ist in the Judicial Retirement System.

(b) To effectuate the merger required by this sec­tion, the director of the Division of Retirement, as administrator of the retirement systems hereby merged, shall, as of July 1, 1972, cause to be trans­ferred to the Florida Retirement System all assets, including money, securities, and other property held for the judicial retirement system, as well as all liabil­ities and obligations of said system. Upon such trans­fer of assets, liabilities, and obligations, the adminis­trator shall become the trustee of any trust fund or funds transferred to the Florida Retirement System.

History.- ss. I , 3, ch. 72-345.

121.051 Participation in the system.­(!) COMPULSORY PARTICIPATION.-(a) The provisions of tb,is la»: shall be comeulsory

as to :ill officers and employees, except legislators who meet the requirements of s. 121.052(1)(c), who are employed on grafter Pecemher J ,19:Z.O, of an em­ployer other than those referred to in paragraph (2)(b), and each officer or employee, as a condition of employment, shall become a member of the system as

of his date of employment, except that a person who is retired from any state retirement system and is re­employed on or after December 1, 1970, shall not be permitted to renew his membership in any state re­tirement system except as provided in s. 121.091(4)(e), for a person who recovers from disabil­ity, and s. 121.091(9)(d), for a person who is elected to public office. Officers and employees of the Uni­versity Athletic Association, Inc., a nonprofit associa­tion connected with the University of Florida, em­ployed on and after July 1, 1979, shall -Qtparticipate in any state-supported retirement system.

(b) After June 30, 1978, the compulsory partici­pation provisions of paragraph (a) shall not be con­strued to require participation in the Florida Retire­ment System by a member of an existing system who is reemployed after terminating his employment, or who otherwise interrupts his employment under an existing system, provided he leaves his accumulated contributions on deposit under the existing system. Such member shall continue to have membership in the existing system upon reemployment or resump­tion of employment and shall not be permitted to be­come a member of the Florida Retirement System, except by transferring to the Florida Retirement Sys­tem as authorized by paragraph (2)(a) or s. 121.052(1) or by being reemployed after terminating his employment and receiving a refund of his accu­mulated contributions made to the existing system.

(2) OPTIONAL PARTICIPATION.-(a)l. Any officer or employee who is a member of

an existing system, except any officer or employee of any nonprofit professional association or corporation, may elect, if eligible, to become a member of this sys­tem at any time between April 15, 1971, and June 1, 1971, inclusive, by notifying his employer in writing of his desire to transfer membership from the exist­ing system to this system. Any officer or employee who was a member of an existing system on Decem­ber 1, 1970, and who did not elect to become a mem­ber of this system shall continue to be covered under the existing system subject to the provisions of s. 121.045. A person who has retired under any state re­tirement system shall not be eligible to transfer to the Florida Retirement System created by this chap­ter subsequent to such retirement. Any officer or em­ployee who, prior to July 1, 1947, filed a written re­jection of membership in a state retirement system and who continues employment without participat­ing in the Florida Retirement System may withdraw his rejection in writing and, if otherwise eligible, par­ticipate in the Florida Retirement System and pur­chase prior service in accordance with this chapter. Any former member of an existing system who was permitted to transfer to the Florida Retirement Sys­tem while employed by the University Athletic Asso­ciation, Inc., a nonprofit association connected with the University of Florida, during this or subsequent transfer periods, contrary to the provisions of this paragraph, is hereby confirmed as a member of the Florida Retirement System, the provisions of this paragraph to the contrary notwithstanding.

2. Any member transferring from the existing system under chapter 238 shall retain his rights to survivor benefits under said chapter through Novem-

566

F.S. 1981 FLORIDA RETIREMENT SYSTEM Ch.121

her 30, 1975, or until fully insured for disability bene­fits under social security, whichever is the earliest date, and thereafter no such rights shall exist.

3. Any officer or employee who is a member of an existing system on April 15, 1972, and who was eligi­ble to transfer to this system under the provisions of subparagraph 1., but who elected to remain in the ex­isting system, may elect, if eligible under the Social Security Act, 42 U.S.C. s. 418(d)(6)(F), to become a member of this system at any time between April 15, 1972, and June 30, 1972, inclusive, by notifying his employer in writing of his desire to transfer member­ship from an existing system to this system. Such transfer shall be subject to the following conditions:

a. All persons electing to transfer to the Florida Retirement System under this subparagraph shall be transferred on July 1, 1972, and shall thereafter be subject to the provisions of the Florida Retirement System retroactively to November 30, 1970, and at retirement have their benefits calculated in accord­ance with the provisions of s. 121.091.

b. Social security coverage incidental to such elective membership in the Florida Retirement Sys­tem shall be effective November 30, 1970, and all amounts required from a member for retroactive so­cial security coverage shall, at the time such election is made, be deducted from the individual account of the member, and the difference between the amount remaining in the individual account of such member and the total amount which such member would have contributed had he become a member of the Florida Retirement System on November 30, 1970, shall be paid into the system trust fund and added to his indi­vidual account prior to July 1, 1975, or by his date of retirement, if earlier. Interest at the rate of 8 percent per annum, compounded annually until paid, shall be charged on any balance remaining unpaid on said date.

c. There is appropriated out of the system trust fund into the Social Security Contribution Trust Fund the amount required by federal laws and regu­lations to be contributed with respect to social securi­ty coverage for the years after November 30, 1970, of the members of an existing system who transfer to the Florida Retirement System in accordance with this subparagraph and who qualify for retroactive so­cial security coverage. The amount paid from this ap­propriation with respect to the employees of any em­ployer shall be charged to the employing agency. There shall be credited against this charge the differ­ence between the matching contributions actually made for the affected employees from November 30, 1970, to June 30, 1972, and the amount of matching contributions that would have been required under the Florida Retirement System.

d. The net amounts charged the employing agen­cies for employees transferring to the Florida Retire­ment System under this subparagraph shall be paid to the system trust fund prior to July 1, 1975. Inter­est at the rate of 8 percent per annum, compounded annually until paid, shall be charged on any balance remaining unpaid on said date.

e. The administrator shall request such modifica­tion of the state's agreement with the Social Security Administration, or any referendum required under

the Social Security Act governing social security cov­erage, as may be required to implement the provi­sions of this law. Retroactive social security coverage for service with an employer prior to November 30, 1970, shall not be provided for any member who was not covered under the agreement as of November 30, 1970.

4. Any officer or employee who was a member of an existing system on December 1, 1970, and who is still a member of an existing system, except any offi­cer or employee of any nonprofit professional associa­tion or corporation, may elect, if eligible, to become a member of this system at any time between Septem­ber 1, 1974, and November 30, 1974, inclusive, by no­tifying his employer in writing of his desire to trans­fer membership from the existing system to this sys­tem. This decision to transfer or not to transfer shall become irrevocable on November 30, 1974. All mem­bers electing to transfer during the transfer period shall become members of the Florida Retirement System on January 1, 1975, and shall be subject to the provisions of the Florida Retirement System on and after that date. Any officer or employee who was a member of an existing system on December 1, 1970, and who does not elect to become a member of this system shall continue to be covered under the exist­ing system, subject to the provisions of s. 121.045. Any member transferring from the Teachers' Retire­ment System of Florida under chapter 238 to the Florida Retirement System on January 1, 1975, shall retain his rights to survivor benefits under chapter 238 from January 1, 1975, through December 31, 1979, or until fully insured for disability benefits un­der the Social Security Act, whichever is the earliest date, and thereafter no such rights shall exist.

5.a. Any officer or employee who was a member of an existing system on December 1, 1970, and who is still a member of an existing system, except any of­ficer or employee of any nonprofit professional asso­ciation or corporation, may elect, if eligible, to be­come a member of this system at any time between January 2, 1982, and May 31, 1982, inclusive, by noti­fying his employer in writing of his desire to transfer membership from the existing system to this system. This decision to transfer or not to transfer shall be­come irrevocable on May 31, 1982. All members elect­ing to transfer during the transfer period shall be­come members of the Florida Retirement System on July 1, 1982, and shall be subject to the provisions of the Florida Retirement System on and after that date. Any officer or employee who was a member of an existing system on December 1, 1970, and who does not elect to become a member of this system shall continue to be covered under the existing sys­tem, subject to the provisions of s. 121.045. Any member transferring from the Teachers' Retirement System under chapter 238 to the Florida Retirement System on January 1, 1979, shall retain his rights to survivor benefits under chapter 238 from January 1, 1979, through December 31, 1983, or until fully in­sured for disability benefits under the federal Social Security Act, whichever is the earliest date, and thereafter no such rights shall exist. Any such mem­ber transferring to the Florida Retirement System on July 1, 1982, shall retain his rights to survivor bene-

567

Ch.121 FLORIDA RETIREMENT SYSTEM F.S.1981

fits under chapter 238 from July 1, 1982, through June 30, 1987, or until fully insured for disability benefits under the federal Social Security Act, which­ever is the earliest date, and thereafter no such rights shall exist.

b. Any deficit, as determined by the state actu­ary, accruing to the Survivors' Benefit Trust Fund of the Teachers' Retirement System and resulting from the passage of chapter 78-308, Laws of Florida, and chapter 80-242, Laws of Florida, shall become an ob­ligation of the Florida Retirement Trust Fund.

(b)l. The governing body of any city or special district in the state may elect to participate in the system upon proper application to the administrator and may cover all or any of its units as approved by the Secretary of Health and Human Services and the administrator.

2. Any city or special district that has an existing retirement system covering the employees in the units which are to be brought under the Florida Re­tirement System may participate only after holding a referendum in which all employees in the affected units have the right to participate. Only those em­ployees electing coverage under the Florida Retire­ment System by affirmative vote in said referendum shall be eligible for coverage under this chapter, and those not participating or electing not to be covered by the Florida Retirement System shall remain in their present systems and shall not be eligible for coverage under this chapter. After said referendum is held, all future employees shall be compulsory mem­bers of the Florida Retirement System.

3. The governing body of any city or special dis­trict complying with subparagraph 1. may elect to provide, or not provide, benefits based on past ser­vice of officers and employees as described in s. 121.081(1). However, if such employer elects to pro­vide past service benefits, such benefits shall be pro­vided for all officers and employees of its covered group.

4. Once this election is made and approved it may not be revoked, and all present officers and employ­ees electing coverage under this chapter and all fu­ture officers and employees shall be compulsory members of the Florida Retirement System.

(3) SOCIAL SECURITY COVERAGE.-Social security coverage shall be provided for all officers and employees who become members under the pro­visions of subsection (1) or (2) . Any modification of the present agreement with the Social Security Ad­ministration, or referendum required under the So­cial Security Act, for the purpose of providing social security coverage for any member shall be requested by the state agency in compliance with the applicable provisions of the Social Security Act governing such coverage. However, retroactive social security cover­age for service prior to December 1, 1970, with the employer shall not be provided for any member who was not covered under the agreement as of November 30, 1970.

(4) INFORMATION REQUIRED.-The em­ployer shall furnish the administrator with such in­formation as he may request for the proper enroll­ment of officers and employees in the system.

(5) RIGHTS LIMITED.-(a) Participation in the system shall not give any

member the right to be retained in the employ of the employer or, upon dismissal, to have any right or in­terest in the fund other than herein provided.

(b) No member who has caused a shortage in a public account, when such shortage is certified by the Auditor General or a certified public accountant, may retire or receive any benefits under this chapter so long as such shortage exists.

(6) SEASONAL STATE EMPLOYMENT; BLIND VENDING FACILITY OPERATORS.-

(a) Seasonal state employment shall be included under this chapter, and the time limit and procedure for claiming same as set forth in s. 122.07 shall con­tinue under this chapter for those members transfer­ring to this system and for all new members.

(b)l. All blind or partially sighted persons who are now employed or licensed by the Division of Blind Services as vending facility operators, or who may hereafter be so licensed or employed, are hereby declared to be state employees within the meaning of this chapter, and all vending facility operators li­censed and employed after December 1, 1970, shall be compulsory members in compliance with this chapter.

2. Blindness shall not be deemed a retirement disability within the provisions of this chapter for such members as are contemplated by this para­graph.

(7) JOINT REPRESENTATIVES; FEDERAL CIVIL SERVICE.-All state and county cooperative extension personnel holding appointments by the United States Department of Agriculture for exten­sion work in agriculture and home economics in the state shall be joint representatives of the University of Florida and the United States Department of Agri­culture unless otherwise expressly provided in the project agreement. Such personnel shall be deemed governed by the requirements of Federal Civil Ser­vice, as written in the agreement between the Univer­sity of Florida and the United States Department of Agriculture. Such personnel so governed by the re­quirements of Federal Civil Service shall be prohibit­ed from participating in any retirement or social se­curity program or act administered by the state ex­cept those members covered under s. 238.13, as of November 30, 1970.

(8) COUNTY AND SCHOOL DISTRICT OFFI­CERS; ALTERNATIVE PARTICIPATION.-Any county or school district elected officer may partici­pate in any plan qualified under Subchapter D, Chapter 1, Subtitle A of the Internal Revenue Code of 1954, as amended and in effect on January 1, 1979, as an alternative to participating in the Elected State Officers' Class, the regular class, or the special risk class of the Florida Retirement System or an existing system.

History.-s. 5, ch. 70-112; s. 1, ch. 72-182; s. 1, ch. 72-340; s. 1, ch. 72-344; s. 1, ch. 73-268; s. 3, ch. 74-302; s. 1, ch. 75-152; s. 1, ch. 77-174; s. 21, ch. 77-259; s. 2, ch. 77-469; s. 3, ch. 78-308; s. 1, ch. 79-375; s. 1, ch. 79-377; s. 2, ch. 80-242; s. 2, ch. 81-214; s. 60, ch. 81 -259.

121.0515 Special risk membership; criteria; designation and removal of classification; cred­its for past service and prior service.-

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F.S. 1981 FLORIDA RETIREMENT SYSTEM Ch.121

(1) LEGISLATIVE INTENT.-In creating the special risk class of membership within the Florida Retirement System, it is the intent and purpose of the Legislature to recognize that persons employed in certain categories of law enforcement, firefighting, and criminal detention positions are required as one of the essential functions of their positions to per­form work that is physically demanding or arduous, or work that requires extraordinary agility and men­tal acuity, and that such persons, because of dimin­ishing physical and mental faculties, may find that they are not able, without risk to the health and safe­ty of themselves, the public, or their coworkers, to continue performing such duties and thus enjoy the full career and retirement benefits enjoyed by per­sons employed in other positions and that, if they find it necessary, due to the physical and mental lim­itations of their age, to retire at an earlier age and usually with less service, they will suffer an economic deprivation therefrom. Therefore, as a means of rec­ognizing the peculiar and special problems of this class of employees, it is the intent and purpose of the Legislature to establish a class of retirement mem-

. bership that awards more retirement credit per year of service than that awarded to other employees; however, nothing contained herein shall require ineli­gibility for special risk membership upon reaching age 55.

(2) CRITERIA-A member, to be designated as a special risk member, must meet the following criteria:

(a) The member must be employed as a law en­forcement officer and be certified in compliance with s. 943.14, or be on temporary waiver as provided by s. 943.14 until certified; however, sheriffs and elected police chiefs shall be excluded from meeting the cer­tification requirements of this paragraph. In addi­tion, the member's duties and responsibilities must include the pursuit, apprehension, and arrest of law violators or suspected law violators, or the member must be the supervisor or command officer of a mem­ber or members who have such responsibilities; pro­vided, however, administrative support personnel, in­cluding, but not limited to, those whose primary du­ties and responsibilities are in accounting, purchas­ing, legal, and personnel, shall not be included;

(b) The member must be employed as a fire­fighter and be certified, or required to be certified, in compliance with s. 633.35 and be employed solely within the fire department of the employer or agency of state government. In addition, the member's du­ties and responsibilities must include on-the-scene fighting of fires or direct supervision of firefighting units, or the member must be the supervisor or com­mand officer of a member or members who have such responsibilities; provided, however, administrative support personnel, including, but not limited to, those whose primary duties and responsibilities are in accounting, purchasing, legal, and personnel, shall not be included; or

(c) The member must be employed as a correc­tional officer and be certified in compliance with s. 944.585. In addition, the member's primary duties and responsibilities must be the custody, and physi­cal restraint when necessary, of prisoners or inmates

within a prison, jail, or other criminal detention facil­ity, or while on work detail outside the facility, or while being transported; provided, however, adminis­trative support personnel, including, but not limited to, those whose primary duties and responsibilities are in accounting, purchasing, legal, and personnel, shall not be included; however, superintendents and assistant superintendents shall participate in the special risk class.

(3) PROCEDURE FOR DESIGNATING.-(a) Any member of the Florida Retirement Sys­

tem employed by a county, city, or special district who feels that he meets the criteria set forth in this section for membership in the special risk class may request that his employer submit an application to the division requesting that the division designate him as a special risk member. If the employer agrees that the member meets the requirements for special risk membership, he shall submit an application to the division in behalf of the employee containing a certification that the member meets the criteria for special risk membership set forth in this section and such other supporting documentation as may be re­quired by administrative rule. The division shall, within 90 days, either designate or refuse to designate the member as a special risk member. If the employer declines to submit the member's application to the division or if the division does not designate the member as a special risk member, the member or the employer may appeal to the State Retirement Com­mission, as provided in s. 121.23, for designation as a special risk member.

(b)l. Applying the criteria set forth in this sec­tion, the Department of Administration shall specify which current and newly created classes of positions under the uniform classification plan established pursuant to chapter 110 entitle the incumbents of po­sitions in those classes to membership in the special risk class. Only employees employed in the classes so specified shall be special risk members.

2. When a class is not specified by the depart­ment as provided in subparagraph 1., the employing agency may petition the State Retirement Commis­sion for approval in accordance with s. 121.23.

(4) REMOVAL OF SPECIAL RISK MEMBER­SHIP.-Any member who is a special risk member on October 1, 1978, and who fails to meet the criteria for special risk membership established by this sec­tion shall have his special risk designation removed and thereafter shall be a regular member and shall earn only regular membership credit. The division shall have the authority to review the special risk designation of members to determine whether or not those members continue to meet the criteria for spe­cial risk membership.

(5) CREDIT FOR PAST SERVICE.-A special risk member may purchase retirement credit in the special risk class based upon past service, and may upgrade retirement credit for such past service, to the extent of 2 percent of the member's average monthly compensation as specified ins. 121.091(1)(a) for such service as follows:

(a) The member may purchase special risk credit for past service with a city or special district which has elected to join the Florida Retirement System if

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Ch.121 FLORIDA RETIREMENT SYSTEM F.S. 1981

the member was employed with the city or special district at the time it commenced participating in the Florida Retirement System. The service must satisfy the criteria set forth in subsection (2) for special risk membership as a law enforcement officer, firefighter, or correctional officer; however, no certificate or waiver of certificate of compliance with s. 943.14, s. 633.35, or 's. 944.585 shall be required for such ser­vice.

(b) Contributions for upgrading the additional special risk credit pursuant to this subsection shall be equal to the difference in the contributions paid and the special risk percentage rate of gross salary in ef­fect at the time of purchase for the period being claimed, plus interest thereon at the rate of 4 percent a year compounded annually from the date of such service until July 1, 1975, and 6.5 percent a year thereafter until the date of payment. This past ser­vice may be purchased by the member or by the em­ployer on behalf of the member.

(6) CREDIT FOR PRIOR SERVICE.-A special risk member who has creditable service with an em­ployer under chapter 122, in a position which satis­fies the criteria provided for in subsection (2) for spe­cial risk membership except the requirement for a certificate or waiver of certificate, shall have those years of service counted towards the attainment of the normal retirement date as a special risk member under this chapter. The percentage value of each such year of creditable service under chapter 122 shall not change as a result of the application of this subsection. A special risk member who has taken a refund of contributions for such creditable service under chapter 122 and has reclaimed it as prior ser­vice credit under this chapter shall be permitted to have such creditable service counted towards the at­tainment of the normal retirement date for the spe­cial risk class of membership under this chapter.

History.-s. 2, ch. 78-308; s. I, ch. 81-153; s. I , ch. 81 -214. ' Note.-Section 944.585 was repealed by s. 23, ch. 81-24.

cf.- s. 258.024 Park officers; ineligible for special risk membership.

121.052 Membership class of certain elected state officers.-

(l)(a) There is hereby established a separate class of members within the Florida Retirement Sys­tem, established by this chapter, to be known and cit­ed as "Elected State Officers' Class."

(b) Participation in the Elected State Officers' Class shall be compulsory for any Governor, Lieuten­ant Governor, Cabinet officer, Supreme Court jus­tice, district court of appeal judge, circuit judge, state attorney, public defender, or public service commis­sioner assuming office, either by election or appoint­ment, on or after July 1, 1972, or for any county court judge assuming office, either by election or appoint­ment, on or after October 1, 1974, who is not already a member of any existing system, the Judicial Retire­ment System, or the regular or special risk classes of the Florida Retirement System when elected or ap­pointed to such office. Effective July 1, 1979, no pub­lic service commissioner shall be eligible for member­ship in the Elected State Officers' Class, and on that date any public service commissioner who is a mem­ber of the Elected State Officers' Class shall be re­moved from that class, shall become a member of the

regular class, and shall thereafter be subject to the benefits and provisions of the regular class. Any pub­lic service commissioner who is removed from the Elected State Officers' Class on July 1, 1979, shall re­tain any retirement credit earned in the Elected State Officers' Class as of that date.

(c)l. Any legislator elected to office after July 1, 1980, who is a participant, or is intending to partici­pate, in any plan qualified under Subchapter D, Chapter 1, Subtitle A of the Internal Revenue Code of 1954, as amended and in effect on January 1, 1979, shall have the option of participating in the Elected State Officers' Class of the Florida Retirement Sys­tem or not participating in the Florida Retirement System in any manner. Any legislator so elected shall have a period of 6 months, commencing with the date of election, to notify the administrator, in writing, of his desire to withdraw from the Elected State Offi­cers' Class; unless and until such time as such legisla­tor makes timely withdrawal herein, he shall be a participant in the Elected State Officers' Class.

2. Any legislator elected to office on or before July 1, 1980, who is a member of the Florida Retire­ment System shall remain in the system unless such legislator is a participant, or is intending to partici­pate, in any plan qualified under Subchapter D, Chapter 1, Subtitle A of the Internal Revenue Code of 1954, as amended and in effect on January 1, 1979, and unless, prior to January 1, 1981, such legislator indicates to the administrator his desire to withdraw from participation in any class of the Florida Retire­ment System.

3. Upon receipt of a request from a legislator to withdraw from participation or upon the election of the legislator to withdraw from the Florida Retire­ment System pursuant to subparagraph 1., the ad­ministrator shall refund all moneys contributed by the legislator to the system during his period of par­ticipation in the system, unless the legislator has a vested right under the Florida Retirement System, in which case the member shall not receive a refund of contributions.

4. Any legislator elected or reelected to office af­ter July 1, 1980, who has withdrawn from the Florida Retirement System pursuant to this paragraph shall be permitted to rejoin the Elected State Officers' Class of that system upon written request to the ad­ministrator. Credit for prior service, based on the pe­riod for which refunds were received pursuant to sub­paragraph 3., shall be received by legislators who re­join the system upon payment to the System Trust Fund of an amount equal to the amount of contribu­tions refunded to the legislator pursuant to subpara­graph 3. plus 6.5 percent interest, compounded annu­ally. Credit for prior service based on the period dur­ing which the legislator had withdrawn from the sys­tem, and for which no contributions were made, shall be received by the legislator upon payment to the System Trust Fund of an amount equal to the contri­bution required under the contribution rate in effect during the period of withdrawal for which credit is being purchased, plus 6.5 percent interest, com­pounded annually, provided the payment of the total of such amount shall be made by the employer and the member in the relative proportions provided by

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F.S. 1981 FLORIDA RETIREMENT SYSTEM Ch.121

law for contributions during the period of withdraw­al.

(d) On and after July 1, 1972, participation in the Elected State Officers' Class shall be optional within the time provided herein for any Governor, Lieuten­ant Governor, Cabinet officer, legislator, Supreme Court justice, district court of appeal judge, circuit judge, state attorney, public defender, or public ser­vice commissioner who is already a member of any existing system, the Judicial Retirement System, or the regular or special risk classes of the Florida Re­tirement System when elected or appointed to such office, except that, effective July 1, 1979, no public service commissioner shall be eligible for member­ship in the Elected State Officers' Class. Participa­tion in the Elected State Officers' Class shall be op­tional within the time provided herein for any county court judge who assumed office prior to October 1, 1974. After July 1, 1980, participation in the Elected State Officers' Class shall be optional for legislators within the time provided in paragraph (c), provided such legislators meet the requirements in paragraph (c). Any such officer may, upon application to the ad­ministrator of the Florida Retirement System, within 1 year from the date he first becomes eligible to be a member of the Elected State Officers' Class by virtue of the office he holds, except for legislators who shall apply to the administrator within the time period provided in paragraph (c), transfer to and participate in the Elected State Officers' Class, subject to the fol­lowing provisions:

1. He shall transfer and carry with him such re­tirement credit as he has accumulated in the retire­ment system or class within the Florida Retirement System from which he transfers; and

2. He may purchase additional retirement credit in the Elected State Officers' Class for all creditable service as an officer within the purview of this class, which service he has accumulated in the retirement system or class within the Florida Retirement System from which he transfers, upon the payment into the system trust fund of a sum equal to the difference be­tween 8 percent of the gross salary he received for the period of his tenure in the office, or 8 percent of $1,000 per month, whichever is greater, for which he seeks additional retirement credit and the actual amount of his retirement contributions for such peri­od, based on such salary, plus interest thereon at the rate of 4 percent per annum compounded annually from the date of such service until July 1, 1975, and 6.5 percent per annum thereafter until the date of payment. An amount equal to the member's contri­butions and interest payments shall be paid to the system trust fund from the General Revenue Fund. A county court judge or any other member of the Elect­ed State Officers' Class may purchase additional re­tirement credit for service prior to January 1, 1973, as a county solicitor; county judge; judge of a court of record; judge of a criminal or civil court of record; judge of any metropolitan court established pursuant to s. 6, Art. VIII of the State Constitution; judge of a small claims court; or justice of the peace, provided an amount equal to the member's contributions and interest payments shall be paid to the system trust fund by the county or by the individual. Service as a

county court judge from January 1, 1973, to October 1, 1974, may be purchased as additional retirement credit in the Elected State Officers' Class by all members of this class having such service, in the same manner as other additional retirement credit is purchased in this class.

(e) Any officer who is eligible to be a member of the Elected State Officers' Class, but for whom the time period provided in paragraph (d) has expired without his having transferred to the Elected State Officers' Class, shall be permitted to elect, in writing, from October 1, 1978, through December 31, 1980, to transfer to, and become a member of, this class on January 1, 1981, and be subject to the benefits and provisions of the Elected State Officers' Class on and after that date. After December 31, 1980, no such election may be made.

(f) Any Governor, Lieutenant Governor, Cabinet officer, Supreme Court justice, district court of ap­peal judge, circuit judge, county court judge, state at­torney, public service commissioner, or public de­fender who is eligible to be a member of the Elected State Officers' Class, but for whom the time period provided in paragraph (d) has expired without his having transferred to the Elected State Officers' Class, shall be permitted to elect, in writing, from July 1, 1977, through September 30, 1977, to transfer under the provisions of paragraph (d) to the Elected State Officers' Class on October 1, 1977, and be sub­ject to the benefits and provisions of such class on and after that date.

(g) On or after July 1, 1981, participation in the Elected State Officers' Class shall be optional within the time provided herein for any county elected offi­cer, including any sheriff, tax collector, property ap­praiser, supervisor of elections, clerk of the circuit court, county commissioner, school board member, 'or elected school board superintendent. Any such of­ficer may, upon application to the administrator of the Florida Retirement System within 1 year from the date the officer first becomes eligible for mem­bership by virtue of the office he holds, transfer to and participate in the Elected State Officers' Class. Benefits shall accrue upon the same basis as provided for other nonjudicial members of the class. Any such officer who is already a member of the Florida Re­tirement System upon election or appointment to of­fice shall carry with him such retirement credit as he has accumulated in the retirement system or class within the Florida Retirement System from which he transfers.

(2) Members of the Elected State Officers' Class shall be subject to social security coverage as provid­ed by the federal Social Security Act. The adminis­trator shall make such modification to the agreement between the state and the Federal Social Security Administrator, made pursuant to the provisions of chapter 650, hold any referendum, or take any other action as may be required to provide social security coverage for said members.

(3)(a) The definitions set forth in s. 121.021 and all other provisions of this chapter shall apply to the Elected State Officers' Class, except when the defini­tions and provisions are in conflict with, or are super­seded or modified by, the provisions of this section.

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Ch.121 FLORIDA RETIREMENT SYSTEM F.S. 1981

(b) A member of the Elected State Officers' Class shall have the same normal retirement date as de­fined in s. 121.021(29) for a regular member of the Florida Retirement System, except that only 8 years of creditable service in this class shall be needed to attain the normal retirement date specified in s. 121.021(29)(a). Any public service commissioner who is removed from the Elected State Officers' Class on July 1, 1979, after attaining at least 8 years of credit­able service in that class shall be considered to have reached normal retirement age upon attaining the age required in s. 121.021(29)(a).

(c) The average final compensation of a member of the Elected State Officers' Class shall be as de­fined in s. 121.021(24) or the average annual compen­sation of the 5 best of the last 8 years of service if the member has less than 10 years of creditable service at the time of retirement, termination, or death.

(4)(a)l. From and after October 1, 1978, and ex­cept as provided in this subsection, the employer paying the salary of a member of the Elected State Officers' Class shall withhold 8 percent of his gross salary, which shall constitute the contribution of that member with respect to retirement and other bene­fits payable to members of this class, and one-half of the entire contribution of the member required for social security coverage. The employer withholding such contributions shall set aside the funds necessary to pay the matching contributions required pursuant to s. 121.061 and shall contribute an amount equal to 10.57 percent of such member's gross compensation and one-half of the entire contribution with respect to the member's social security coverage.

2. From and after October 1, 1981, the employer paying the salary of any member of the Elected State Officers' Class who is a legislator shall contribute an amount equal to 19.3 percent of such member's gross compensation, which shall constitute the entire con­tribution with respect to such member. The employer shall, however, withhold one-half of the entire contri­bution of the member required for social security coverage.

(b)l. From and after October 1, 1978, the em­ployer paying the salary of any member of the Elect­ed State Officers' Class who is a Governor, Lieuten­ant Governor, Cabinet officer, Supreme Court jus­tice, district court of appeal judge, circuit judge, county court judge, state attorney, public service commissioner, or public defender shall contribute an amount equal to 16.78 percent of such member's gross compensation and shall withhold 4 percent of such member's gross compensation, the sum of which shall constitute the entire contribution with respect to such member. The employer shall, however, with­hold one-half of the entire contribution of the mem­ber required for social security coverage. Effective July 1, 1979, any member of the Elected State Offi­cers' Class who is a public service commissioner shall be removed from this class, shall become a regular member on that date, and shall be subject to the con­tribution provisions of s. 121.071 which pertain to regular members.

2. From and after October 1, 1981, the employer paying the salary of any member of the Elected State Officers' Class who is a Governor, Lieutenant Gover-

nor, or Cabinet officer shall contribute an amount equal to 21.03 percent of such member's gross com­pensation, which shall constitute the entire contribu­tion with respect to such member. The employer shall, however, withhold one-half of the entire contri­bution of the member required for social security coverage.

(c) From and after October 1, 1979, the employer paying the salary of any member of the Elected State Officers' Class who is a Supreme Court justice, dis­trict court of appeal judge, circuit judge, county court judge, state attorney, or public defender shall con­tribute an amount equal to 20.78 percent of that member's gross compensation, which shall constitute the entire contribution with respect to that member. The employer shall, .however, withhold one-half of the entire contribution of the member required for social security coverage.

(d) Effective October 1, 1981, the employer pay­ing the salary of any member of the Elected State Of­ficers' Class who is a Supreme Court justice, district court of appeal judge, circuit judge, or county court judge shall contribute an amount equal to 22.55 per­cent of that member's gross compensation, which shall constitute the entire contribution with respect to that member. The employer shall, however, with­hold one-half of the entire contribution of the mem­ber required for social security coverage.

(e) Effective October 1, 1981, the employer pay­ing the salary of any member of the Elected State Of­ficers' Class who is a state attorney or public defend­er shall contribute an amount equal to 20.95 percent of that member's gross compensation, which shall constitute the entire contribution with respect to that member. The employer shall, however, withhold one-half of the entire contribution of the member re­quired for social security coverage.

(f) From and after July 1, 1981, the employer paying the salary of any member of the Elected State Officers' Class who is a county elected officer shall contribute an amount equal to 19.3 percent of that member's gross compensation, which shall constitute the entire contribution with respect to that member. The employer shall, however, withhold one-half of the entire contribution of the member required for social security coverage.

(g) Elected State Officers' Class members' contri­butions and matching contributions received from state employers shall be deposited by the ad.ministra­tor in the system trust fund and Social Security Trust Fund of the Florida Retirement System.

(5)(a) A member of the Elected State Officers' Class who is a Supreme Court justice, district court of appeal judge, circuit judge, or county court judge shall receive retirement credit of 3 1/3 percent of aver­age final compensation, and all other members shall receive retirement credit of 3 percent of average final compensation, for each year of creditable service in such class.

(b) Upon attaining his normal retirement date, a member of the Elected State Officers' Class, upon application to the administrator, shall receive a monthly benefit which shall commence on the last day of the month of retirement and be payable on the last day of each month thereafter during his lifetime.

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F.S. 1981 FLORIDA RETIREMENT SYSTEM Ch.121

The amount of such monthly benefit shall be the to­tal percentage of retirement credit received by the member multiplied by his average monthly compen­sation, but in no event shall such benefit exceed the member's average final compensation. The total per­centage of retirement credit received by a member shall be the sum of the retirement credit he earns as a member of the Elected State Officers' Class and in each category of employment together with any re­tirement credit he acquires for wartime military ser­vice.

(c) The benefit provisions of subsections (2), (3), (4), (5), (6), (7), (8), (9), and (11) of s. 121.091, as they relate respectively to benefits payable for dual nor­mal retirement ages, early retirement, disability re­tirement, termination of employment, optional forms of retirement, death benefits, designations of benefi­ciaries, employment after retirement, and method of computing actuarial equivalent, shall also apply to members of the Elected State Officers' Class, except that only 8 years of creditable service in this class shall be needed to attain the benefits specified in subsections (3), (5), and (7) of such section. The pro­visions of all subsections referred to in this paragraph shall be construed in such manner to make them compatible with the provisions of this act.

(d) The provisions of ss. 121.101 and 121.111, re­spectively, relating to the cost-of-living adjustment of retirement benefits and retirement credit for wartime military service, shall apply to members of the Elect­ed State Officers' Class. Creditable service for actual wartime service, as authorized by s. 121.111(2), not exceeding 4 years, shall be acquired and paid for as provided in said subsection. Upon payment by the member of 4 percent of gross salary plus accrued in­terest, retirement credit shall be granted at the rate of 1.6 percent for each year of creditable service ac­quired under said subsection.

(6)(a) Any member of the Elected State Officers' Class who ceases to fill an office covered by this class and who is employed in a position covered by the Florida Retirement System may receive credit in the Florida Retirement System for any retirement credit which he earns under this class, and such credit shall be granted at the rate of 3 1/ 3 percent for service as a Supreme Court justice, district court of appeal judge, circuit judge, or county court judge, or at the rate of 3 percent credit if his service was in any other office, for each year of creditable service in such class.

(b) Any member of the Elected State Officers' Class who leaves office or otherwise terminates his membership in the retirement system for any reason other than death or retirement and who does not come under the provisions of paragraph (a) shall be subject to the termination benefit provisions of s. 121.091(5).

(7) The administrator shall make such rules and regulations as are necessary for the effective and effi­cient administration of the Elected State Officers' Class.

(8) There is hereby annually appropriated from the General Revenue Fund and the system trust fund sufficient amounts to make such payments as are provided by this section.

History.- ss. 2, 4, ch. 72-345; s. I, ch. 72-359; s. I, ch. 74-215; s. I, ch. 75-296; s. 1, ch. 76-240; s. I , ch. 77-464; s. I , ch. 77-285; s. 4, ch. 78-308; s. 26, ch. 79-164; s. 2, ch. 79-375; s. 2, ch. 79-377; s. 2, ch. 80-131; s. 2, ch. 81-214; s. 3, ch. 81-307.

' Note.- The word "or" was substituted for "and" by the editors.

121.053 Optional participation in the Elect­ed State Officers' Class for retired members of any existing system.-

(!) Any member who retires under any existing system as defined ins. 121.021(2), and who receives a benefit thereof, and who serves in an office covered by the Elected State Officers' Class for a period of at least 8 years, shall be entitled to receive an additional retirement benefit, any law to the contrary notwith­standing, under the Elected State Officers' Class of the Florida Retirement System, as follows:

(a) Such member shall notify the administrator of his intent to purchase 8 or more years of creditable service under the Elected State Officers' Class, s. 121.052, and shall pay 8 percent of all salary received in the period being claimed, plus 4 percent interest compounded annually from first year of service claimed until July 1, 1975, and 6.5 percent interest compounded annually thereafter, until full payment is made to the Florida Retirement Trust Fund; how­ever, such member may purchase retirement credit under the Elected State Officers' Class only for such service as an Elected State Officer.

(b) The above amount shall be matched by the employer and paid into the Florida Retirement Trust Fund.

(2) Upon attaining his normal retirement date and payment of the amount specified in paragraphs (a) and (b), and upon application to the administra­tor of his intent to retire, the member shall receive a monthly benefit under this section, in addition to any benefits already being received, which shall com­mence on the last day of the month of retirement and be payable on the last day of the month thereafter during his lifetime. The amount of such monthly benefit shall be the total percentage of retirement credit purchased under this section multiplied by the member's average monthly compensation as an elect­ed state officer, adjusted according to the option se­lected at retirement under s. 121.091(6).

History.- s. 4, ch. 77-469.

121.054 Retirees precluded from joining other systems.-Any member who retires under chapter 121 shall be prohibited from joining any oth­er state or local government supported retirement system in Florida. No city, county, subdivision, or taxing district of the State of Florida can require as a condition of employment that the employee join or participate in any pension or retirement plan or pro­gram if said employee is eligible for, or is receiving, benefits under chapter 121.

History.-s. 3, ch. 77-467.

121.061 Funding.-(!) Commencing December 1, 1970, all employers

withholding contributions required of members un­der this chapter for purposes of providing retirement benefits and social security benefits to or on behalf of such members shall budget, set aside, and pay over to the administrator, for deposit into the proper retire­ment and social security trust funds, matching pay­ments for retirement and social security contribu­tions as required by this chapter.

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Ch. 121 FLORIDA RETIREMENT SYSTEM F.S. 1981

(2)(a) Should any employer other than a state employer fail to make the retirement and social se­curity contributions, both member and employer contributions, required by this chapter, then, upon request by the administrator, the Department of Revenue or the Department of Banking and Finance, as the case may be, shall deduct the amount owed by the employer from any funds to be distributed by it to the county, city, special district, or consolidated form of government. The amounts so deducted shall be transferred to the administrator for further distri­bution to the trust funds in accordance with this chapter.

(b) Should any employer for whom the city or county tax collector collects taxes, fail to make the retirement and social security contributions required by this chapter, the tax collector, at the request of the administrator and upon receipt of a certificate from the administrator showing the amount owed by the employer, shall deduct the amount so certified from any taxes collected for the employer and remit the amount to the administrator for further distribu­tion to the trust funds in accordance with this chap­ter.

(c) The governing body of each county, city, spe­cial district, or consolidated form of government par­ticipating under this chapter or the adminis_trator, acting individually or jointly, is hereby authonzed to file and maintain an action in the courts of the state to require any employer to remit any retirement or social security member contributions or employer matching payments due the retirement or social se­curity trust funds under the provisions of this chap­ter.

(d) Should the income of any constitutional fee officer, in any year, be insufficient to make the matching payments required by this chapter, the board of county commissioners shall provide such fee officer sufficient funds to make these required pay­ments when due.

(3) The appropriations provided each state agen­cy, beginning with the 1970-1971 fiscal year an? ~ach fiscal year thereafter, shall include suffiCient amounts to pay the matching contributions for social security and retirement as required by this chapter. No state agency, whether its funds are provided by state appropriations or otherwise, shall employ an_y person or maintain any person on its payroll unless It has allotted for such person sufficient funds to meet these required payments. Should a state agency fail to make such payments, the administrator shall re­port same to the Governor and certify the amount due the system trust funds to the Executive Office of the Governor. If arrangements cannot be made for the state agency to pay said amount due, then the amount due is hereby appropriated and shall be paid from the General Revenue Fund of the state.

History.-s. 6, ch. 70-112; s. 1, ch. 70-439; s. 2, ch. 72-295; s. 88, ch. 79-190. cf.-s. 121.052 Membership class of certsin elected stste officers.

121.071 Contributions.-Contributions to the system shall be made as follows:

(1) Until January 1, 1975, regular members shall contribute each pay period at the rate of 4 percent of gross compensation and special risk members shall

contribute each pay period at the rate of 8 percent of gross compensation. Effective January 1, 1975, regu­lar members and special risk members shall make no contribution to the system.

(2) Until January 1, 1975, each employer shall contribute an amount equal to the total of its mem­ber contributions, made under subsection (1), each pay period. Effective January 1, 1975, and until Octo­ber 1, 1978, each employer shall contribute 9 percent of gross compensation each pay period for each of its regular members and 13 percent of gross compensa­tion each pay period for each of its special risk mem­bers. Effective October 1, 1978, each employer shall contribute 9.1 percent of gross compensation each pay period for each of its regular members and 13.95 percent of gross compensation each pay period for each of its special risk members. Effective October 1, 1981, each employer shall contribute 10.93 percent of gross compensation each pay period for each of its regular members and 13.91 percent of gross compen­sation each pay period for each of its special risk members.

(3)(a) Effective January 1. 197.5, each employ_er shall accomphsh the increased contribution required by subsection (2) by a procedure in which no employ­e's r ss salar shall be reduced.

(b) Upon termma 1on.. o employment for any rea­son other than retiremenq a member shall be entitled to a full refund of the contributions he has made pri­or or subsequent to his participation in the noncon­tributory plan, subject to the restrictions otherwise provided in this chapter.

(4) Contributions for social security by each member and each employer, in the amount required for social security coverage as now or hereafter pro­vided by the federal Social Security Act, shall be in addition to contributions specified in subsections (2) and (3).

(5) Contributions made in accordance with sub­sections (2), (3), and (4) shall be paid by the employ­er into the system trust funds in accordance with rules promulgated by the administrator pursuant to chapter 120. Such contributions are due and payable no later than the 25th day of the month immediately following the month during which the payroll period ended. The division may by rule establish a different due date, which shall supersede the date specified herein; however, said date shall not be established earlier than the 20th day of the month immediately following the month during which the payroll period ended. Contributions received in the offices of the Division of Retirement of the Department of Admin­istration after said date shall be considered delin­quent, and, in the case of retirement contributions due under subsections (2) and (3), each employer shall be assessed a delinquent fee of 0.5 percent of the contributions due for each calendar month or part thereof that said contributions are delinquent. Delinquent social security contributions shall be. as­sessed a delinquent fee as authorized by s. 650.05(4).

History.-s. 7, ch. 70-112; ss. 4, 13, ch. 74-302; s. 1, ch. 74-376; s. 2, ch. 77-467; s. 5, ch. 78-308; s. 4, ch. 81-307. cf.-s. 121.052 Membership class of certsin elected stste officers.

121.081 Past service; prior service; contri-

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F.S. 1981 FLORIDA RETIREMENT SYSTEM Ch.121

butions.-Conditions under which past service or prior service may be claimed and credited are:

(1)(a) Past service, as defined in s. 121.021(18), may be claimed as creditable service by officers or employees of a city or special district that become a covered group under this system. The governing body of a covered group in compliance with s. 121.051(2)(b) may elect to provide benefits with re­spect to past service earned prior to January 1, 1975, in accordance with this chapter, and the cost for said past service shall be established by applying the fol­lowing formula: The member contribution for both regular and special risk members shall be 4 percent of the gross annual salary for each year of past service claimed, plus 4-percent employer matching contribu­tion, plus 4 percent interest thereon compounded an­nually, figured on each year of past service, with in­terest compounded from date of annual salary earned until July 1, 1975, and 6.5 percent interest com­pounded annually thereafter until date of payment. Once the total cost for a member has been figured to date, then after July 1, 1975, 6.5 percent compounded interest shall be added each June 30 thereafter on any unpaid balance until the cost of said past service liability is paid in full. The following formula shall be used in calculating past service earned prior to Janu­ary 1, 1975: (Annual gross salary multiplied by 8 per­cent) multiplied by the 4 percent or 6.5 percent com­pound interest table factor, as may be applicable. The resulting product equals cost to date for each particular year of past service.

(b) Past service earned after January 1, 1975, may be claimed by officers or employees of a city or special district that become a covered group under this system. The governing body of a covered group may elect to provide benefits with respect to past ser­vice earned after January 1, 1975, in accordance with this chapter, and the cost for said past service shall be established by applying the following formula: The employer shall contribute 9 percent of the em­ployee's gross salary for each year of past service claimed, plus 6.5 percent interest thereon, com­pounded annually, figured on each year of past ser­vice, with interest compounded from date of annual salary earned until date of payment.

(c) Should the employer not elect to provide past service for the member, then the member may claim and pay same, based on paragraphs (a) and (b).

(d) Employment prior to January 1, 1968, in the Cuban Refugee Assistance Program administered by the Florida State Department of Public Welfare or the Florida State Board of Health shall be deemed to be included in "past service" as defined in s. 121.021(18), for the purposes of the Florida Retire­ment System, any other provisions of law notwith­standing and regardless of the fund from which such employment was paid. If credit for such service has not been granted under any other state or federal system, any member of the Florida Retirement Sys­tem or any system consolidated therein shall be enti­tled to receive past service credit for his period of em­ployment in the Cuban Refugee Assistance Program prior to January 1, 1968, in the manner provided in this subsection. However, in no event will eligibility for "past service" be established unless required con-

tributions are paid into the Florida Retirement Sys­tem for such period of "past service" and such contri­butions are not paid from general revenue funds of the state.

(e) Past service, as defined in s. 121.021(18), may be claimed as creditable service by a member of the Florida Retirement System who formerly was an offi­cer or employee of a city or special district, notwith­standing the status or form of the retirement system, if any, of said city or special district and irrespective of whether officers or employees of said city or spe­cial district now or hereafter become a covered group under the Florida Retirement System. Such member may claim creditable service and be entitled to the benefits accruing to the regular class of members as provided for the past service claimed under this para­graph by paying into the retirement trust fund an amount equal to the total actuarial cost of providing the additional benefit resulting from such past-service credit, discounted by the applicable ac­tuarial factors to date of retirement.

(f) Whenever any employee of a governmental entity who is participating in a local retirement sys­tem of the governmental entity becomes eligible to participate in the Florida Retirement System by vir­tue of the consolidation or merger of governments or the transfer of functions between units of govern­ment, either at the state or local level or between state and local units of government, in which the re­sulting unit of government becomes or remains an employer as defined in this chapter, said employee shall elect either to continue to participate in the lo­cal retirement system or to become a member of the Florida Retirement System. Should any employee elect to continue to participate in the local retire­ment system, his employer shall make contributions to the local retirement system at the required rates, but in no event shall the rate of contributions made by the employer to the local retirement system ex­ceed the combined rate of retirement contributions and social security contributions paid by the employ­er to the Florida Retirement System on behalf of an employee who is a regular member of the Florida Re­tirement System.

(g) When any person, either prior to this act or hereafter, becomes entitled to and does participate in one of the retirement systems consolidated within or created by this chapter through the consolidation or merger of governments or the transfer of functions between units of government, either at the state or local level or between state and local units, or through the assumption of functions or activities by a state or local unit from an employing entity which was not an employer under the system, and such per­son becomes a member of the Florida Retirement System, such person shall be entitled to receive "past service" credit as defined in s. 121.021(18) for the time such person performed services for, and was an employee of, said state or local unit or other employ­ing entity prior to the transfer, merger, consolidation, or assumption of functions and activities. Past ser­vice credit allowed by this paragraph shall also be available to those persons who became members of an existing system, as defined in s. 121.021(2), prior to December 1, 1970, through the transfer, merger,

575

Ch.121 FLORIDA RETIREMENT SYSTEM F.S.1981

consolidation, or assumption of functions and activi­ties set forth in this paragraph and who subsequently become members of the Florida Retirement System. However, in no event will credit for the past service be granted until contributions are made in the man­ner provided in this subsection. Such contributions and accrued interest shall not be paid from any state funds.

(h) Any person who was enrolled on May 15, 1976, in a state retirement system administered un­der this chapter and who was,-on that date, an officer or employee of a consolidated government which by virtue of its charter had elected status as a munici­pality for purposes of state retirement systems ad­ministered under this chapter and who had not with­drawn his contributions shall be deemed to have be­come a member of that system as of the date he be­gan to participate therein, whether employed by the consolidated government or a preceding interim gov­ernment on that date, and shall be entitled to retain his membership in that system so long as he contin­ues to be an officer or employee of the consolidated government, regardless of the fact that the consoli­dated government and interim government were not "employers" as defined ins. 121.021(10). Any person who was enrolled before May 15, 1976, in a state re­tirement system administered under this chapter and who was, during the period of enrollment, an officer or employee of a consolidated government which by virtue of its charter had elected status as a munici­pality for purposes of state retirement systems ad­ministered under this chapter, who terminated em­ployment with the consolidated government, and who had not withdrawn his contributions shall be deemed to have been a member of the retirement sys­tem in which he was enrolled during the period of such enrollment and employment by that consolidat­ed government and during any period of enrollment and employment by any interim government which performed the functions of the consolidated govern­ment prior to its creation, regardless of the fact that the consolidated government and interim govern­ment were not "employers" as defined in s. 121.021(10). However, in no event shall credit be granted for service rendered in such employment pri­or to May 15, 1976, unless the contributions required for such credit were paid prior to May 15, 1976.

(i) Notwithstanding any of the provisions of this subsection, no past-service credit may be purchased under this chapter for any service which is used to obtain a benefit from any local retirement system.

(j) An employee of a state agency who was a member of a state-administered retirement system and who was granted educational leave with pay pur­suant to a written educational leave-with-pay policy may claim such period of educational leave as past service subject to the following conditions:

1. The educational leave must have occurred pri­or to December 31, 1971;

2. The member must have completed at least 10 years of creditable service excluding the period of the educational leave;

3. The employee must have returned to employ­ment with a state agency employer who participated in the retirement system, which return was immedi-

ately upon termination of the educational leave, and must have remained on the employer's payroll for at least 30 calendar days following his return to employ­ment;

4. The employee must be a member of the Florida Retirement System at the time he claims such ser­vice;

5. Not more than 24 months of creditable service may be claimed for such period of educational leave with pay;

6. The service shall not be claimed under any other state or federal retirement system; and

7. The member shall pay to the retirement trust fund for claiming such past-service credit an amount equal to 8 percent of his gross annual salary immedi­ately prior to the educational leave with pay for each year of past service claime\f, plus 4 percent interest thereon compounded annually each June 30 from first year of service claimed until July 1, 1975, and 6.5 percent interest thereafter on the unpaid balance compounded annually each June 30 until paid.

(2) Prior service, as defined ins. 121.021(19), may be claimed as creditable service under the Florida Retirement System after a member has been reem­ployed for 12 continuous months. The member shall not be permitted to make any contributions for prior service until after the 12-month period. The required contributions for claiming the various types of prior service are:

(a) For prior service performed prior to the date the system becomes noncontributory for the member and for which the member had credit under one of the existing retirement systems and received a refund of contributions upon termination of employment, the member shall contribute 4 percent of all salary received during the period being claimed, plus 4 per­cent interest compounded annually from date of re­fund until July 1, 1975, and 6.5 percent interest com­pounded annually thereafter, until full payment is made to the Retirement Trust Fund.

(b) For prior service performed prior to the date the system becomes noncontributory for the member and for which the member had credit under the Flor­ida Retirement System and received a refund of con­tributions upon termination of employment, the member shall contribute at the rate that was re­quired of him during the period of service being claimed, on all salary received during such period, plus 4 percent interest compounded annually from date of refund until July 1, 1975, and 6.5 percent in­terest compounded annually thereafter, until the full payment is made to the Retirement Trust Fund.

(c) For service performed after the Florida Re­tirement System becomes noncontributory for the member, and for which the member had credit under the Florida Retirement System at date of termina­tion of employment, the member shall not be re­quired to make any contributions in order to receive prior service credit, but such credit shall not be granted until the member has been reemployed for 12 continuous months.

(d) For prior service as defined in s . 121.021(19)(b) and (c) during which no contributions were made because the member did not participate in a retirement system, the member shall contribute 9

576

F.S. 1981 FLORIDA RETIREMENT SYSTEM Ch.121

percent of all salary received during such period or 9 percent of $100 per month during such period, which­ever is greater, plus 4 percent interest compounded annually from the first year of service claimed until July 1, 1975, and 6.5 percent interest compounded annually thereafter, until full payment is made to the Retirement Trust Fund.

(e) In order to claim credit for prior service as de­fined in s. 121.021(19)(d) for which no retirement contributions were paid during the period of such service, the member shall contribute the total em­ployee and employer contributions which were re­quired to be made to the Highway Patrol Pension Trust Fund, as provided in chapter 321, during the period claimed, plus 4 percent interest compounded annually from the first year of service until July 1, 1975, and 6.5 percent interest compounded annually thereafter, until full payment is made to the Retire­ment Trust Fund. However, any governmental entity which employed such member may elect to pay up to 50 percent of the contributions and interest required to purchase this prior service credit.

History.- s. 8, ch. 70-11 2; s. 27, ch. 71 -355; s. I, ch. 72-168; s. I, ch. 74-158; s. 5, ch. 74-302; s. I, ch. 75-260; s. 2, ch. 76-226; s. 3, ch. 77-469; s. 5, ch. 79-377; s. 7, ch. 60-242; s. 2, ch. 60-243; s. 4, ch. 81-214.

121.091 Benefits payable under the system.

(1) NORMAL RETIREMENT BENE­FIT.-Upon attaining his normal retirement date, the member, upon application to the admtmstrator, shall receive a monthly benefit which shall commence on the last day of the month of retirement and be payable on the last day of each month thereafter dur­ing his lifetime. The amount of monthly benefit shall be determined as the roduct of A and B, subject to the adj~tment of C, i applicable, when:

(a) (AAs 1.60 ~ercent of his ayerage monthly com­.,eensation, up tois normal retirement age. The first year a@r his normal retirement age, A is 1&3 per­cent of his average monthly compensation. The sec­ond year after his normal retirement age, A is 1.65 percent of his average monthly compensation. The third year after his normal retirement age, A is 1.68 percent of his average monthly compensation. A s'hail not exceed 1.68 percent of his average monthly com­pensation, except that for all creditable years of spe­cial risk service, A is 2 percent of his average monthly compensation for all creditable years prior to October 1, 1974, for which additional retirement credit has not been purchased, and 3 percent of his average monthly compensation until October 1, 1978, when all years of creditable service thereafter as a special risk member shall be worth 2 percent of his average monthly compensation; however, the normal retire­ment benefit, including any past or additional retire­ment credit, may not exceed 100 percent of the aver­age finl!l_ compensation;

(b) & is the number of his years and any fraction­al part of a year of creditable service earned subse­quent ~November 30, 1970; and

(c) is the o_ormal retiremeut 'b&Defit cred.it brough forward as of November 30, 1970, by a for­mer member of an existing system. Such normal re­tirement benefit credit shall be determined as the product of A and B when A is the percentage of aver-

age final compensation which the member would have been eligible to receive if he had attained his normal retirement date as of November 30, 1970, all in accordance with the existing system under which the member is covered on November 30, 1970, and B is average monthly compensation as defined in s. 121.021(25). However, any member of an existing re­tirement system who is eligible to retire and who does retire, become disabled, or die prior to April 15, 1971, may have his retirement benefits calculated on the basis of the best 5 of the last 10 years of service.

(2) BENEFITS PAYABLE FOR DUAL NOR­MAL RETIREMENT AGES.-In the event a mem­ber shall accumulate retirement benefits to com­mence at different normal retirement ages by virtue of his having performed duties for an employer which would entitle· him to benefits as both a regular mem­ber and special risk member, the amount of benefits payable shall be computed separately with respect to each such age and the sum of such computed amounts shall be paid as provided in this section.

(3) EARLY RETIREMENT BENEFIT.-Upon retirement on his early retirement date, the member shall receive an immediate monthly benefit which shall commence the last day of the month of his re­tirement date and be payable on the last day of each month thereafter during his lifetime. The amount of each monthly payment shall be computed in the same manner as for a normal retirement benefit, in accordance with subsection (1) , but based on average IPOnthly compensation6!id> creditable service as of the member's early retirement date. The 6enefit so computed shall be r.!l.9uc ~~r­c~~Q.L.e.aJ;:h..cru:xi.p)ete mgptb by >Yhich the..earl~­tirement p~ es he OQPPal. retirement date gf age Q2.for a regular member or a member of the Elected State Officers' Class, and age 55 for a special risk member or age 52 if a special risk member has com­pleted 25 years of creditable service in accordance with s. 121.021(29)(c)3. However, if the employment of a member is terminated by reason of death subse­quent to the completion of 20 years of creditable ser­vice, the monthly benefit payable to the member's beneficiary shall be calculated in accordance with subsection (1), but based on average monthly com­pensation and creditable service as of the date of death. The benefit so computed shall be reduced by five-twelfths of 1 percent for each complete month by which death precedes the normal retirement date specified above or the date on which the member would have attained 30 years of creditable service had he survived and continued his employment, whichever provides a higher benefit.

(4) DISABILITY RETIREMENT BENEFIT.­(a) Disability retirement date.-A member who

becomes totally and permanently disabled, as de­fined in paragraph (b) , after completing 5 years of creditable service, or a member who becomes totally and permanently disabled in the line of duty regard­less of service, shall be entitled to a monthly disabili­ty benefit; except that any member with less than 5 years of creditable service on July 1, 1980, or any per­son who becomes a member of the Florida Retire­ment System on or after such date must have com­pleted 10 years of creditable service prior to becom-

577

Ch. 121 FLORIDA RETIREMENT SYSTEM F.S. 1981

ing totally and permanently disabled in order to re­ceive disability retirement benefits for any disability which occurs other than in the line of duty. But in the event that any member with less than 5 years of creditable service on July 1, 1980, becomes totally and permanently disabled after completing 5 years of creditable service and is found not to have attained fully insured status for disability benefits under the federal Social Security Act, such member shall be en­titled to a monthly disability benefit. The disability retirement date shall be the first day of the month which coincides with or next follows the date the ad­ministrator approves payment of disability retire­ment benefits to the member.

(b) Total and permanent disability.-A member shall be considered totally and permanently disabled if, in the opinion of the administrator, he is prevent­ed, by reason of a medically determinable physical or mental impairment, from rendering useful and effi­cient service as an officer or employee. The decision of the administrator on these questions shall be final and binding.

(c) Proof of disability.-The administrator, be­fore approving payment of any disability retirement benefit, shall require proof that the member is totally and permanently disabled as provided herein, which proof shall include the certification of the member's total and permanent disability by two licensed physi­cians of the state and such other evidence of disabili­ty as the administrator may require.

(d) Disability retirement benefit.-!. A member, upon retirement on his· disability

retirement date, shall receive a monthly benefit which shall commence on the last day of the month of his disability retirement and shall be payable on the last day of each month thereafter during his life­time and continued disability. The amount of each monthly payment shall be computed in the same manner as for a normal retirement benefit, in accord­ance with subsection (1) of this section, but based on the member's average monthly compensation and creditable service as of his disability retirement date, subject to the following conditions:

a. If the member's disability occurred in the line of duty, his monthly benefit shall not be less than 42 percent of his average monthly compensation as of his disability retirement date; or

b. If the member's disability occurred other than in the line of duty, his monthly benefit shall not be less than 25 percent of his average monthly compen­sation as of his disability retirement date. The mini­mum monthly benefit allowed in this sub-subparagraph shall not apply to an officer or em­ployee who has attained normal retirement age.

2. A member may elect to receive a reduced dis­ability retirement benefit which shall be payable for the lifetime of the member, and in the event of his death within a period of 10 years after his disability retirement date, the same monthly benefit shall be payable to his beneficiary, as selected by the member at his disability retirement date, for the balance of the 10-year period. The benefits payable under this subparagraph shall be the actuarial equivalent of the disability benefit to which the disabled member is otherwise entitled.

(e) Recovery from disability.-The administrator may require periodic reexaminations at the expense of the retirement fund, and:

1. If the administrator finds that a member who is receiving disability benefits is, at any time prior to his normal retirement date, no longer disabled, the administrator shall direct that the benefits be discon­tinued. The decision of the administrator on this question shall be final and binding.

2. If the member, described in subparagraph 1., who recovers from such disability prior to his normal retirement date does not reenter the employ of an employer and had not completed 10 years of credit­able service as of his disability retirement date, he shall be entitled to the excess, if any, of his accumu­lated contributions over the total disability benefits received up to his date of recovery.

3. If the member, described in subparagraph 1., who recovers from such disability prior to his normal retirement date does not reenter the employ of an employer but had completed 10 or more years of creditable service as of his disability retirement date, he may elect to receive:

a. The excess, if any, of his accumulated contri­butions over the total disability benefits received up to his date of recovery, or

b. A deferred benefit commencing on the last day of the month of his normal retirement date which shall be payable on the last day of the month thereaf­ter during his lifetime. The amount of such monthly benefit shall be computed in the same manner as for a normal retirement benefit, in accordance with sub­section (1) of this section, but based on average monthly compensation and creditable service as of the member's disability retirement date.

4. If the member recovers from disability and re­enters employment of an employer within 6 months after his recovery, his service will be deemed to have been continuous, but the period beginning with the first month for which he received a disability benefit payment and ending with the date he reentered em­ployment will not be considered as creditable service for the purpose of computing benefits. The term "ac­cumulated contributions" for such member wherever used in this section· after such recovery shall mean the excess of a member's accumulated contributions as of his disability retirement date over total disabili­ty benefits received under paragraph (d).

(f) Nonadmissible causes of disability.-A mem­ber shall not be entitled to receive any disability re­tirement benefit if his disability is a result of any of the following:

1. Injury or disease sustained by the member while willfully participating in a riot, civil insurrec­tion, or other act of violence or while committing a felony;

2. Injury or disease sustained by the member af­ter his employment has terminated; or

3. Intentional, self-inflicted injury. (g) Disability retirement of justice or judge by

order of Supreme Court.-1. If a member is a justice of the Supreme Court,

judge of a district court of appeal, circuit judge, or judge of a county court who has served for 10 years or more as an elected constitutional judicial officer, in-

578

F.S. 1981 FLORIDA RETIREMENT SYSTEM Ch.121

eluding service as a judicial officer in any court abo!- ployment is terminated by reason of his admitted ished pursuant to Article V of the State Constitution, commitment, aiding, or abetting of an embezzlement and who is retired for disability by order of the Su- or theft from his employer, bribery, or other felony preme Court upon recommendation of the Judicial specified in chapter 838, shall forfeit all rights and Qualifications Commission pursuant to the provi- benefits under this chapter, except the return of his sions of Art. V of the State Constitution, his monthly accumulated contributions as of his date of termina­benefit shall not be less than two-thirds of his tion. monthly compensation as of his disability retirement (g) Any elected official who is convicted by the date. Senate of an impeachable offense shall forfeit all

2. Should any justice or judge who is a member of rights and benefits under this chapter, except there­the Florida Retirement System be retired for disabil- turn of his accumulated contributions as of the date ity by order of the Supreme Court upon recommen- of his conviction. dation of the Judicial Qualifications Commission (h) Any member who, prior to retirement, is ad­pursuant to the provisions of Art. V of the State Con- judged by a court of competent jurisdiction to have stitution, then all contributions to his account and all violated any state law against strikes by public em­contributions made on his behalf by his employer ployees, or who has been found guilty by such court shall be transferred to and deposited in the General of violating any state law prohibiting strikes by pub­Revenue Fund of the state, and there is hereby ap- lie employees, shall forfeit all rights and benefits un­propriated annually out of the General Revenue der this chapter, except the return of his accumulat­Fund, to be paid into the Florida Retirement System ed contributions as of the date of his conviction. Fund, an amount necessary to pay the benefits of all (6) OPTIONAL FORMS OF RETIREMENT justices and judges retired from the Florida Retire- BENEFITS.-ment System pursuant to Art. V of the State Consti- (a) A member shall elect, prior to the receipt of tution. his first monthly retirement payment, to receive the

(5) TERMINATION BENEFITS.- retirement benefits to which he is entitled under sub-(a) A member whose employment is terminated section (1), subsection (2), or subsection (3) of this

for any reason other than death or retirement prior to section in accordance with one of the following op­the completion of 10 years of creditable service shall tions: be entitled to the return of his accumulated contribu- 1. The maximym retirement benefit payable to tions as of his date of termination. the member during his IW:W:ne.

(b) A member whose employment is terminated 2. A decreased retirement benefit payable to the for any reason other than death or retirement after member during his lifetime and, in the event of his the completion of 10 years of creditable service may death within a period of 10 years after his retirement, elect to receive a deferred monthly benefit which the same monthly amount shall be payable for the shall commence on the last day of the month of his balance of such 1 O~reru;..nerjod to his beneficiary or, normal or early retirement and shall be payable on in case the beneficiary is deceased, in accordance the last day of each month thereafter during his life- with subsection (8) of this section as though no bene­time. The amount of monthly benefit shall be com- ficiary had been named. puted in the same manner as for a normal retirement 3. A decreased retirement benefit which shall be benefit in accordance with subsection (1) or early re- payable during the joint lifetime of both the member tirement benefit in accordance with s. 121.021(30), and his joint annuitant and which shall continue af­but based on average monthly compensation and ter the death of either during the lifetime of the sur-creditable service as of his date of termination. vivor in the same amount.

(c) In lieu of the deferred monthly benefit pro- 4. A decreased retirement benefit which shall be vided in paragraph (b), the terminated member may payable during the joint lifetime of the member and elect to receive a lump-sum amount equal to his accu- his joint annuitant and which shall continue after the mulated contributions as of his date of termination. death of either during the lifetime of the survivor in

(d) If any retired member dies without having re- an amount equal to §6% percent of the amount ceived in benefit payments an amount equal to his which was payable during the joint lifetime of the accumulated contributions, there shall be payable to member and his joint annuitant. his designated beneficiary an amount equal to the ex- (b) The benefit payable under any option stated cess, if any, of the member's accumulated contribu- above shall be the actuarial equivalent, based on ta­tions over the total monthly payments made to the hies adopted by the admimstrator for this purpose, of member prior to his date of death. the amount to which the member was otherwise enti-

(e) A member shall be deemed a terminated tled. member only at such time as he is no longer em- (c) A member who elects the option in subpara-ployed by an employer. graph 2. of paragraph (a) shall, in accordance with

(f) Any member who has been found guilty by a subsection (8), designate a person to receive the ben­verdict of a jury, or by the court trying the case with- efits payable in the event of his death. Such person out a jury, of committing, aiding, or abetting any em- shall be the beneficiary of the member. bezzlement or theft from his employer, bribery in (d) A member who elects the option in subpara­connection with the employment, or other felony graph 3. or subparagraph 4. of paragraph (a) shall, on specified in chapter 838, committed prior to retire- a form provided for that purpose, designate his ment, or who has entered a plea of guilty or of nolo spouse or other dependent to receive the benefits contendere to such crime, or any member whose em- which continue to be payable upon the death of the

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Ch.121 FLORIDA RETIREMENT SYSTEM F.S.1981

member. Such person shall be the joint annuitant of the member. If, after benefits have commenced under the option in subparagraph 3. or subparagraph 4., the retired member desires to change his designation of a joint annuitant, he may do so only if his first desig­nated joint annuitant is alive and can show evidence of good health which shall be substantiated by a statement from a physician licensed in this state. A member desiring to change his designation of a joint annuitant shall file with the division a notarized "change of joint annuitant" form. Upon receipt of a completed change of joint annuitant form, the divi­sion shall adjust the member's monthly benefit by the application of actuarial tables and calculations developed to ensure that the benefit paid is the actu­arial equivalent of the benefit to which the member was otherwise entitled under the option in subpara­graph 1. of paragraph (a), taking into consideration the benefits that have already been paid at the time the member elects to change his designation of a joint annuitant. The consent of a retired member's first designated joint annuitant to any such change shall not be required.

(e) The election of an option shall be null and void if either the member, designated beneficiary, or designated joint annuitant shall die before benefits commence.

(f) A member who elects to receive benefits under the option in subparagraph 3. of paragraph (a) may designate one or more qualified persons, either a spouse or other dependent, as his joint annuitant to receive ·the benefits after his death in whatever pro­portion he so assigns to each person named as joint annuitant. The division shall adopt appropriate actu­arial tables and calculations necessary to ensure that the benefit paid is the actuarial equivalent of the benefit to which the member is otherwise entitled un­der the option in subparagraph 1. of paragraph (a).

(g) Upon the death of a retired member or bene­ficiary receiving monthly benefits under this chapter, the monthly benefits shall be paid through the last day of the month of death and shall terminate, or be adjusted, if applicable, as of that date in accordance with the optional form of benefit selected at the time of retirement.

(7) DEATH BENEFITS.-(a) If the employment of a member is terminated

by reason of his death prior to the completion of 10 years of creditable service, there shall be payable to his designated beneficiary the member's accumulated contributions.

(b) If the employment of a member is terminated by reason of his death subsequent to the completion of 10 years of creditable service but prior to his actual retirement, it shall be assumed that the member re­tired as of his date of death in accordance with sub­section (1) if eligible for normal retirement benefits, subsection (2) if eligible for benefits payable for dual normal retirement or subsection (3) if eligible for ear­ly retirement benefits, having elected in accordance with subsection (6) , the optional form of payment most favorable to his beneficiary, as determined by the administrator. However, the value of the benefit determined under this paragraph shall not be less than the value of the benefit determined under para-

graph (a). The monthly benefit provided in this para­graph shall be paid to the member's beneficiary (spouse or other dependent) for his or her lifetime.

(c)l. The surviving spouse of any member killed in the line of duty may .receive a monthly pension equal to one-half of the monthly salary being re­ceived by the member at the time of death for the rest of the surviving spouse's lifetime, unless said sur­viving spouse remarries, in which case the pension shall terminate on the date of remarriage; or, in lieu of the above, the surviving spouse may elect to re­ceive the benefit provided in paragraph (b).

2. If the surviving spouse of a member killed in the line of duty dies prior to remarriage, the monthly payments which would have been payable to such surviving spouse had such surviving spouse lived shall be paid for the use and benefit of such mem­ber's child or children under 18 years of age and un­married until the 18th birthday of the member's youngest child.

3. If a member killed in the line of duty leaves no surviving spouse but is survived by a child or children under 18 years of age, the benefits provided by sub­paragraph 1., normally payable to a surviving spouse, shall be paid for the use and benefit of such mem­ber's child or children under 18 years of age and un­married until the 18th birthday of the member's youngest child. .

(d) The surviving spouse or other dependent of any member whose employment is terminated by death shall, upon application to the administrator, be permitted to pay the required contributions for any service performed by the member which could have been claimed by the member at the time of his death. Such service shall be added to the creditable service of the member and shall be used in the calculation of any benefits which may be payable to the surviving spouse or other surviving dependent.

(e) Notwithstanding any other provisions in this chapter to the contrary, if any member who has accu­mulated at least 10 years of creditable service dies and the surviving spouse receives a refund of the ac­cumulated contributions made to the retirement trust fund, such spouse may pay to the Division of Retirement an amount equal to the sum of the amount of the deceased member's accumulated con­tributions previously refunded plus interest at 4 per­cent compounded annually each June 30 from the date of refund to the date of repayment and receive the monthly retirement benefit as provided in para­graph (b).

(f) The designated beneficiary who is the surviv­ing spouse or other dependent of a member whose employment is terminated by death subsequent to the completion of 10 years of creditable service but prior to actual retirement may elect to receive a de­ferred monthly benefit as if the member had lived and had elected a deferred monthly benefit, as pro­vided in paragraph (5)(b), calculated on the basis of the average final compensation and creditable service of the member at his death and the age the member would have attained on the commencement date of the deferred benefit elected by his beneficiary, paid in accordance with option 3 of paragraph (6)(a).

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F.S.1981 FLORIDA RETIREMENT SYSTEM Ch.121

(8) DESIGNATION OF BENEFICIA­RIES.-Each member may, on a form provided for that purpose, signed and filed with the division, des­ignate a choice of one or more persons, named se­quentially or jointly, as his beneficiary who shall re­ceive the benefits, if any, which may be payable in the event of his death pursuant to the provisions of this chapter. If no beneficiary is named in the man­ner provided above, or if no beneficiary designated by the member survives him, the administrator shall direct the payment of such benefits to the spouse of the deceased, if living. If the member's spouse is not alive at his death, any payments to which he was en­titled shall be paid to the living children of the mem­ber or on their behalf if under 18 years of age. If no children survive, any remaining benefits shall be pay­able to the member's father or mother, if living; oth­erwise, to the legal representative of the member's es­tate.

(9) EMPLOYMENT AFTER RETIREMENT; LIMITATION.-

(a) Any person who is retired under this chapter, except under the disability retirement provisions of subsection (4), may be employed by an employer that does not participate in a state-administered retire­ment system and may receive compensation from that employment without limiting or restricting in any way the retirement benefits payable to that per­son.

(b)l. Any person who is retired under this chap­ter, except under the disability retirement provisions of subsection (4), may be employed by an employer that participates in a state-administered retirement system and receive compensation from such employ­ment and retirement benefits at the same time, so long as the employment does not exceed 780 hours each calendar year, or the compensation earned in such employment does not exceed $4,000 each calen­dar year, whichever limitation permits the longer em­ployment. However, such limitation shall not apply to a person age 65 or older.

2. Any person to whom the limitation in subpara­graph 1. applies who will exceed such limitation shall give timely notice of this fact in writing to his em­ployer and to the division and shall advise both of the date on which he will exceed the limitation. The divi­sion shall suspend such retired person's benefits for the remainder of the calendar year during which he continues employment in excess of the limitation in subparagraph 1. Upon commencement of the next calendar year, the division shall resume payment of the retired person's benefits until he again exceeds the employment limitation of subparagraph 1., at which time his benefits shall again be suspended for the remainder of the calendar year. Should such per­son fail to provide timely notice of his employment in excess of the limitation to the division, and should he receive and retain both benefits and compensation in excess of the limitation of subparagraph 1., the divi­sion shall suspend his retirement benefits until he has repaid to the retirement trust fund all benefits received after the limitation was reached.

3. The employment by an employer of any retiree of any state-administered retirement system shall have no effect on the average final compensation or

years of creditable service of the retiree, nor shall any deductions or contributions for retirement be made from or for the compensation received by the retiree with respect to such employment.

4. Notwithstanding the provisions of subpara­graph 1., any retired person who is employed by an employer under the system within 1 calendar month of retirement shall forfeit his right to benefits during that month.

5. Any person who has previously retired and who is holding public office on or after July 1, 1969, may have his membership in the Florida Retirement Sys­tem reinstated by making the necessary contribu­tions to the retirement fund for the period of reem­ployment. Any person electing this alternative shall not be eligible for retirement compensation during the period of employment. During this period of em­ployment, such contributions shall be included in the computation of the employee's average final compen­sation and his years of creditable service.

6. Any person who has retired and subsequently is elected or appointed to an elective public office which is covered by the Florida Retirement System and who does not elect to reinstate his membership in the Florida Retirement System shall continue to receive his retirement benefits in addition to the compensation of the elective office to which he is elected or appointed without regard to the time limi­tations otherwise provided in this subsection.

7. The limitations of this paragraph shall apply to reemployment in any capacity with an employer as defined ins. 121.021(10), irrespective of the category of funds from which the person is compensated.

(10) FUTURE BENEFITS BASED ON ACTU­ARIAL DATA.-It is the intent of the Legislature that future benefit increases enacted into law in this chapter shall be financed concurrently by increased contributions or other adequate funding, and such funding shall be based on sound actuarial data as de­veloped by the actuary or state retirement actuary, as provided in ss. 121.021(6) and 121.192.

(11) A member who becomes eligible to retire and has accumulated the maximum benefit of 100 per­cent of average final compensation may continue in active service, and, if upon the member's retirement the member elects to receive a retirement compensa­tion pursuant to subsection (2), subsection (6), or subsection (7), the actuarial equivalent percentage factor applicable to the age of such member at the time the member reached said maximum benefit and to the age, at said time, of the member's spouse shall determine the amount of benefits to be paid.

History.-s. 9, ch. 70-112; s. 1, ch. 71-22; s. 1, ch. 72-332; s. 1, ch. 72-334; s. 2, ch. 72-344; s. 3, ch. 72-345; s. 3, ch. 72-388; ss. 6, 7, ch. 74-302; s. 2, ch. 74-328; s. 2, ch. 74-376; s. 1, ch. 75-86; s. 1, ch. 77-286; s. 6, ch. 78-308; s. 3, ch. 79-375; s. 2, ch. 80-126; s. 1, ch. 80-128; ss. 1, 3, ch. 80-130; s. 3, ch. 80-242; s. 5, ch. 81-307.

121.101 Cost-of-living adjustment of bene­fits.-

(1) The purpose of this section is to provide cost-of-living adjustments commencing January 1, 1971, to the monthly benefits payable to all retired members of state-supported retirement systems.

(2) The terms used in this section are defined as follows:

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Ch.121 FLORIDA RETIREMENT SYSTEM F.S. 1981

(a) "Average cost-of-living index" as of an adjust­ment date means the average of the monthly consum­er price index figures for the 12-month period from April 1 through March 31 immediately prior to the adjustment date, relative to the United States as a whole, issued by the Bureau of Labor Statistics of the United States Department of Labor.

(b) "Standard benefit" means the monthly bene­fit calculated in accordance with s. 121.091 as for nor­mal retirement, early retirement, or disability retire­ment, and adjusted, if an optional form of benefit payment was elected by the member, in the same ra­tio as his original benefit payment was adjusted. Such determination shall be made on the assump­tions that:

1. Creditable service is the number of years of service for which benefits are provided by the system under which benefits are being paid; and

2. Average final compensation is the compensa­tion base on which benefits being paid were deter­mined.

(c) "Initial benefit" means the first monthly bene­fit payable to a retiree or beneficiary in accordance with the laws governing the determination of such benefit at the time of retirement or earlier death.

(3) On July 1, 1980, and each July 1 thereafter, the benefit of each retiree and annuitant shall be ad­justed as follows:

(a) For those retirees and annuitants who have never received a cost-of-living adjustment under this section, the amount of benefit payable for the 12-month period commencing on the adjustment date shall be:

1. The sum of the member's initial benefit and a percentage of the member's standard benefit, such percentage to be equal to the percentage change in the average cost-of-living index over the period be­tween the date of retirement and the date of adjust­ment, ignoring changes in the cost-of-living index which are greater than 3 percent for any year after June 30, 1970; or

a percentage of this benefit, which percentage will be determined as follows:

(a) For members with 30 years' service or more, the percentage shall equal 1the product of 1 percent multiplied by the number of complete years that have elapsed between the member's date of retire­ment and July 1, 1981.

(b) For members with 20 years' service or more, but less than 30 years' service, the percentage shall equal 1the product of 0.9 percent multiplied by the number of complete years that have elapsed between the member's date of retirement and July 1, 1981.

(c) For members with 10 years' service or more, but less than 20 years' service, the percentage shall equal 1the product of 0.8 percent multiplied by the number of complete years that have elapsed between the member's date of retirement and July 1, 1981.

For purposes of the implementation of the July 1, 1981, adjustment provided in subsection (3), the June 30, 1981, monthly benefit shall be considered equal to the monthly benefit as adjusted pursuant to this subsection, and the July 1, 1981, adjustment pur­suant to subsection (3) shall be in addition to the ad­justment provided by this subsection.

(5) In no event shall a retiree's or annuitant's monthly retirement benefit be reduced, by the appli­cation of this section, below the benefit he was receiv­ing as of July 1, 1970, or at the date of retirement, if later, nor shall his benefit be reduced below the mini­mum monthly benefit provided him under s. 112.362.

(6) The initial benefit and standard benefit of a retiree who elected an optional form of benefit pay­ment which provided for a percentage of the benefit to be continued to a beneficiary after his death shall be reduced at the death of the retiree by application of the stated percentage.

(7) The funds necessary to pay for the cost-of-living adjustment provided by this section are hereby annually appropriated from the System Trust Fund.

History.-s. 10, ch. 70-112; s. 8, ch. 74-302; s. 4, ch. 80-242; s. 6, ch. 81-307. 'Note.-The words "the product or were inserted by the editors.

2. For those retirees and annuitants who qualify for an initial cost-of-living adjustment within 12 months subsequent to the member's date of retire-ment, the percentage change in the average 121.111 Credit for actual wartime service.-cost-of-living index shall be determined by interpola- (1) Creditable service of any member shall also tion from the average cost-of-living index for the two include military service as defined ins. 121.021(20) if: nearest adjustment dates. (a) The member was in the active employ of an

(b) For those retirees and annuitants who have employer immediately prior to such service and was received a cost-of-living adjustment under this sec- granted official military leave of absence and is legal­tion, the adjusted monthly benefit shall be the sum of ly entitled to reemployment under the provisions of the monthly benefit being received on June 30 imme- the Universal Military Training Service Act or other diately preceding the adjustment date and a percent- law applicable to such reemployment and if said age of this benefit equal to the percentage change in member shall apply for and be reemployed within 1 the average cost-of-living index as of the date of ad- year from his date of discharge or separation from ac­justment from said index for the next preceding ad- tive military service; and justment date. However, in no event shall the per- (b) The member makes the required contribu­centage for the annual cost-of-living adjustment ex- tions for service credit during such period, based on ceed 3 percent for any annual adjustment date. his rate of monthly compensation as of his date of en-

(4) On July 1, 1981, each retiree and each annui- try into wartime service plus 4 percent interest on tant who retired on or before July 1, 1980, shall re- such contributions compounded annually from the ceive a supplementary cost-of-living adjustment, to due date of the contribution until July 1, 1975, and be applied by adjusting the retiree's or annuitant's 6.5 percent interest compounded annually thereafter monthly benefit to an amount equal to the sum of the until the payment is made to the proper retirement monthly benefit being received on June 30, 1981, plus trust fund.

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F.S. 1981 FLORIDA RETIREMENT SYSTEM Ch.121

(2) Any member as defined in s. 121.021(12), who has military service as defined ins. 121.021(20) but is ineligible to claim same under subsection (1) of this section may receive creditable service if:

(a) The member has completed a minimum of 10 years creditable service of employment; and

(b) The member pays into the proper retirement trust fund 4 percent of gross salary, based on his first year of salary subsequent to July 1, 1945, that he has credit for under this system, he would have paid for this period of service had he been a member, plus 4 percent interest thereon, compounded annually from date of first creditable service under this chapter un­til July 1, 1975, and 6.5 percent interest compounded annually thereafter until the payment is made to the proper retirement trust fund.

(3) Creditable service not to exceed 4 years under this subsection shall be credited as provided in s. 121.091(1).

History.-s. 11, ch. 70-112; s. 9, ch. 74-302.

121.112 Participation in system by legisla­tors elected pursuant to chapter 63-1X, Laws of Florida.-Any state official elected to fill a full term of office under the Reapportionment Act of 1963, chapter 63-1X, Laws of Florida, may pay into the system trust fund the amount of contribution he would have paid had he been elected in November, 1962, and receive service credit on retirement for a full 2-year or 4-year term.

History.-s. 2, ch. 72-267. cf.-s. 121.052 Membership class of certain elected state officers.

121.113 Participation in system by spouses of certain elected officials.-

(1) In the event any elected official dies in office subsequent to July 1, 1970, who would have had 10 years of creditable service in any state-administered contributory retirement system had he lived to com­plete the term of office in which he was serving at the time of his death, his spouse may elect to leave his re­tirement contributions in the retirement trust fund and pay such additional amounts into said fund as the deceased member would have paid plus the matching contributions that would have been paid had he lived to complete 10 years of creditable ser­vice. Any spouse electing to make such additional contributions to any state retirement system shall be eligible to receive the monthly benefit that is payable to the surviving spouse of a member who dies after accumulating ten years of creditable service.

(2) If a deceased member's surviving spouse com­ing under the provisions of subsection (1) has previ­ously received a refund of the member's contribu­tions made to the retirement trust fund, such spouse may, at any time prior to July 1, 1972, pay to the Di­vision of Retirement an amount equal to the sum of the amount of the deceased member's contributions previously refunded together with interest at 4 per­cent compounded annually on the amount of such re­funded contributions from date of refund to date of payment plus such additional contributions as may be required under subsection (1) in order to qualify for 10 years of creditable service. Any surviving spouse electing to make the payments required here­in shall be eligible to receive the monthly benefit that

is payable to the surviving spouse of a member who dies after accumulating 10 years of creditable service.

History.-s. 1, ch. 72-267; s. 3, ch. 72-345.

121.121 Future service to include authorized leaves of absence.-Future service of any member as defined in s. 121.021(21) shall also include author­ized leaves of absence if:

(1) The member has completed a minimum of 10 years of creditable service, excluding periods of leave of absence.

(2) The leave of absence is authorized in writing by the employer of the member and approved by the administrator.

(3) The leave does not exceed 12 months at any one time nor 24 months in total during his employ­ment.

(4) The member makes the required contribu­tions for service credit during the leave of absence, which shall be 8 percent until January 1, 1975, and 9 percent thereafter of his rate of monthly compensa­tion in effect immediately prior to the commence­ment of such leave for each month of such period, plus 4 percent interest until July 1, 1975, and 6.5 per­cent interest thereafter on such contributions, com­pounded annually each June 30 from the due date of the contribution to date of payment. Effective July 1, 1980, any leave of absence purchased pursuant to this section shall be at the contribution rates specified in s. 121.071 in effect at the time of purchase for the class of membership from which the leave of absence was granted; however, any member who purchased leave-of-absence credit prior to July 1, 1980, for a leave of absence from a position in a class other than the regular membership class, may pay the appropri­ate additional contributions plus compound interest thereon and receive creditable service for such leave of absence in the membership class from which the member was granted the leave of absence.

History.-s. 12, ch. 70-112; s. 10, ch. 74-302; s. 2, ch. 80-128.

121.125 Credit for workers' compensation payments.-A member of the retirement system created by this chapter who has been eligible or be­comes eligible to receive workers' compensation pay­ments for an injury or illness occurring during his employment while a member of any state retirement system shall be subject to the following provisions:

(1) If the member receives no salary payments for the period of time he receives workers' compensation payments, upon his return to active employment, he shall receive full retirement credit for the period for which workers' compensation payments were re­ceived. No employee or employer contributions shall be required in order for the member to receive retire­ment credit for such period. Such credit shall be based on the member's rate of monthly compensation immediately prior to his receiving workers' compen­sation payments; or

(2) If the member receives partial salary for the period of time he receives workers' compensation payments, the required employee contributions shall be deducted from his partial salary each pay period, and, upon his return to active employment, he shall receive full retirement credit for the period for which

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Ch.121 FLORIDA RETIREMENT SYSTEM F.S. 1981

workers ' compensation payments were received. Such credit shall be based on the member's rate of month­ly compensation immediately prior to his receiving workers ' compensation payments; or

(3) If the member is retained in full-pay status in lieu of receiving workers' compensation payments, the required employee contributions shall be deduct­ed from his salary each pay period and he shall re­ceive retirement credit for such period in the same manner he would have received credit had he not been injured or incapacitated.

His tory.-s. 2, ch. 72-347; s. 57, ch. 79-40.

121.131 Benefits exempt from taxes and ex­ecution.- The benefits accrued to any person under the provisions of this chapter and the accumulated contributions, securities, or other investments in the trust funds hereby created are exempt from any state, county, or municipal tax of the state and shall not be subject to assignment, execution, or attach­ment or to any legal process whatsoever.

History.-s. 13, ch. 70-11 2.

121.135 Reports and surveys relative to lo­cal and state retirement systems.-

(!) Commencing in the year 1980, and every third year thereafter, the Division of Retirement of the De­partment of Administration shall make a report to the Legislature regarding the actuarial conditions of locally administered retirement plans or systems op­erated by the political subdivisions of the state and the compliance of such retirement plans or systems with the provisions of this act.

(2) The Department of Administration, through its Division of Retirement, shall make to each regular session of the Legislature a written report on the op­eration and condition of the state-administered re­tirement systems.

History.- s. 3, ch. 72-345; s. 2, ch. 77-286; s. 21, ch. 79-183.

121.141 Appropriation.-(!) There is hereby annually appropriated from

the System Trust Fund or the Social Security Trust Fund a sufficient amount to make such payments as are provided in this chapter.

(2) The funds required to provide payments to beneficiaries of members who die subsequent to the completion of 20 years of creditable service, as speci­fied in s. 121.091(3), shall be annually appropriated from the System Trust Fund.

History.-s. 14, ch. 70-11 2; s. 3, ch. 80-128.

121.151 Investments.-The Board of Adminis­tration, created by authority of the State Constitu­tion, shall invest and reinvest available funds of the System Trust Fund in accordance with the provisions of ss. 215.44-215.53.

History.-s. 15, ch. 70-112; s. 7, ch. 81-295.

121.161 Amendments.-References in this chapter to state or federal laws or agreements are in­tended to include such laws as they now exist or may hereafter be amended.

History.-s. 16, ch. 70-11 2.

121.181 Effective date.-For the purpose of

activating and implementing the Florida Retirement System this chapter shall take effect on December 1, 1970, but for all other purposes it shall take effect July 1, 1970.

History.-s. 19, ch. 70-112.

121.1815 Special pensions to individuals; ad­ministration of laws by Department of Adminis­tration.-All powers, duties, and functions related to the administration of laws providing special pensions to individuals, including chapter 18054, Laws of Flor­ida, 1937; chapter 26788, Laws of Florida, 1951, as amended by chapter 57-871, Laws of Florida; chapter 26836, Laws of Florida, 1951; and chapter 63-953, Laws of Florida, are vested in the Department of Ad­ministration and shall be assigned to the Division of Retirement. All laws hereinafter enacted by the Leg­islature pertaining to special pensions for individuals shall be administered by said division, unless con­trary provisions are contained in such law. Upon the death of any person receiving a monthly pension un­der this section, the monthly pension shall be paid through the last day of the month of death and shall terminate on that date, unless contrary provisions are contained in the special pension law.

History.- s. 31, ch. 69-106; s. 4, ch. 71 -355; s. 2, ch. 72-295; s. 3, ch. 72-345; s. 1, ch. 75-256; s. 2, ch. 77- 124; s. 4, ch. 80-130.

121.191 Special acts prohibited.-After July 1, 1972, there shall not be enacted any special act or general law of local application which proposes to amend, alter, or contravene the provisions of any state-administered retirement system or any state-supported retirement system established by general law.

History.-s. I, ch. 72-388. Note.-Chapter 72-388 was passed by the requisite three-fifths vote in each

house. Sees. 11 (a)(2l), Art. III , State Constitution.

121.192 State retirement actuary.-The Di­vision of Retirement may employ an actuary, as de­fined in s. 121.021(6). Such actuary shall, together with such other duties as the director of retirement may assign him, be responsible for:

(1) Advising the director of retirement on actuar­ial matters of the state's retirement systems.

(2) Making periodic valuations of the retirement systems.

(3) Coordinating the report to the Legislature on the actuarial condition of the retirement systems, as required by s. 121.135.

(4) Providing actuarial analyses to the Legisla­ture concerning proposed changes in the retirement systems.

(5) Assisting the director of retirement in devel­oping a sound and modern retirement system.

History.-s. 11 , ch. 74-302.

121.20 Voluntary retirement with half pay authorized for elective officers of cities or towns; appropriation.-

(!) The intent of the Legislature is to authorize and direct each city and town to provide a system of retirement for elected officials, but it is further the intent that each city or town may determine whether the system shall be contributory or noncontributory.

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F.S. 1981 FLORIDA RETIREMENT SYSTEM Ch.121

(2)(a) From and after June 3, 1939, whenever any elective officer of any city or town of this state has held any elective offices of such city or town for a pe­riod of 20 years or more consecutively, or for a period of 20 years or more consecutively, except for one peri­od not exceeding 6 months, such elective officer may voluntarily resign or retire from such elective office with the right to be paid, and he shall be paid on his own requisition by such city or town during the re­mainder of his natural life, a sum equal to one-half of the full amount of the annual or monthly salary that such city or town was authorized by law to pay said elective officer at the time of his resignation or retire­ment; and such city and town shall appropriate and provide in its annual budget sufficient moneys to meet the requirements of this section when no other plan is available for elected local officials. In cases in which an elective officer during any term of office en­tered or enters and served or serves in the Armed Forces of the United States during any period during which the United States was or shall be engaged in war and thereafter was or shall be appointed or again elected to the same elective office prior to discharge from such service in the Armed Forces, such time of service in the Armed Forces shall not be construed to be a break in consecutive service and shall be count­ed in determining the years of consecutive service of such elective officer.

(b) The provisions of this subsection shall not op­erate to preclude any elected officer from retiring un­der, and receiving benefits pursuant to, the provi­sions of this section as it existed prior to October 1, 1973, if such officer had, prior to that date, complet­ed the required 20 years of service or been elected to a term upon the expiration of which he completes the required 20 years of service.

(3) Each city or town may by ordinance establish a contributory retirement system for those officials defined in subsection (2). The rules for participation, the amount of the official's contributions, and the method of appropriation and payment may be deter­mined by ordinance of the city or town.

History.-s. 1, ch. 19247, 1939; CGL 1940 Supp. 2998(1); s. 1, ch. 57-805; s. 1, ch. 65-455; s. 1, ch. 72-280; s. 4, ch. 73-129; s. 1, ch. 74-231.

Note.-Former s. 165.25.

121.22 State Retirement Commission; cre­ation; membership; compensation.-

(!) There is created within the Department of Administration a State Retirement Commission com­posed of seven members: One member who is retired under a state-supported retirement system adminis­tered by the Division of Retirement; two members from different occupational backgrounds who are ac­tive members in a state-supported retirement system which is administered by the Division of Retirement; and four members who are not retirees, beneficiaries, or members of a state-supported retirement system which is administered by the Division of Retirement.

(2) Appointments to the commission shall be made by the Governor, subject to confirmation by the Senate. Members shall be appointed for 4-year terms. Each member shall serve until his successor is appointed and confirmed, and a member may be ap­pointed to succeed himself. Should a vacancy occur,

it shall be filled by appropriate appointment by the Governor for the period of the unexpired term.

(3) No person shall serve as a member who holds an elective public office of the state or any political subdivision thereof or who holds any office in, or serves as an agent for, a political party. No person shall be appointed to the commission who has not been a citizen of Florida for at least 3 years immedi­ately prior to his appointment.

(4) The Governor may suspend a member of the commission only for cause, subject to removal or re­instatement by the Senate.

History.-s. 1, ch. 75-248; s. 61, ch. 81-259.

121.23 Disability retirement and special risk membership applications; Retirement Com­mission; powers and duties; judicial review. -The provisions of this section shall apply to all proceedings respecting applications for disability re­tirement, reexamination of retired members receiving disability benefits, and applications for special risk membership in the Florida Retirement System.

(1) In accordance with the rules of procedure adopted by the Department of Administration through the Division of Retirement, the administra­tor shall:

(a) Give reasonable notice of his proposed action, or his decision to refuse action, together with a sum­mary of the factual, legal, and policy grounds there­for.

(b) Give affected members, or their counsel, an opportunity to present to the division written evi­dence in opposition to the proposed action or refusal to act or a written statement challenging the grounds upon which the administrator has chosen to justify his action or inaction.

(c) If the objections of the member are overruled, provide a written explanation within 20 days.

(2) Unless the member accepts the decision of the administrator as final and binding, he shall be enti­tled to a hearing before the State Retirement Com­mission pursuant to s. 120.57(1). For the purpose of the said hearings, the commission shall be an agency head as defined by s. 120.52(3).

(a) The Retirement Commission shall have the authority to issue orders as a result of a hearing that shall be binding on all parties to the dispute. The Re­tirement Commission may order any action that it deems appropriate.

(b) Any person who fails to appear in response to a subpoena, answer any question, or produce any evi­dence pertinent to any hearing or who knowingly gives false testimony therein is guilty of a misdemea­nor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(3) The exercise by the Retirement Commission of the powers, duties, and functions prescribed by this section shall be reviewable by the district court of appeal in the appellate district where the Division of Retirement maintains its headquarters.

( 4) The exercise by the Retirement Commission of the powers, duties, and functions prescribed by this section shall be reviewable by the judiciary on the grounds that:

585

Ch. 121 FLORIDA RETIREMENT SYSTEM F.S. 1981

(a) The commission did not afford a fair and eq­uitable hearing in accordance with chapter 120;

(b) The decision of the commission was not in ac­cordance with existing statutes or rules and regula­tions promulgated thereunder; or

(c) The decision of the commission was not based on substantial evidence.

The court shall not, however, substitute its judgment for that of the commission as to the weight of the evi­dence on any disputed finding of fact where the deci­sion of the commission was supported by substantial evidence; nor shall the court substitute its judgment for that of the commission on an issue of discretion.

History.-s. I , ch. 75-248; s. 5, ch. 78-95.

121.24 Conduct of commission business; le­gal and other assistance; compensation.-

(1) The commission shall conduct its business within the following guidelines:

(a) A quorum shall consist of four members, and the concurring vote of four members shall be re­quired to reach a decision, issue orders, and conduct the business of the commission.

(b) The commission shall elect a chairman and such other officers as it deems necessary. The chair­man shall conduct the meetings and hearings of the commission and shall take whatever action is neces­sary to ensure that the business of the commission is conducted in an equitable, orderly, and expeditious manner. All parties shall abide by the chairman's de­cisions, unless the chairman is overruled by a majori­ty of members present.

(2) Legal counsel for the commission may be pro­vided by the Department of Legal Affairs or by the Department of Administration, with the concurrence of the said commission, and shall be paid by the De­partment of Administration from the appropriate funds.

(3) The Division of Retirement shall furnish ad­ministrative and secretarial assistance to the com­mission and shall provide a place where the commis­sion may hold its meetings.

(4) The members of the commission shall be paid an honorarium of $50 for each day spent on the work of the commission. In addition to the honorarium, each member shall receive per diem and travel ex­penses as provided in s. 112.061. The official head-

quarters of each member, for purpose of calculating per diem and travel expenses, shall be his permanent home address. Members of a state-administered re­tirement system who are appointed to the commis­sion shall have their work on the commission consid­ered as part of their regular job assignments and shall not be required to take leave while engaged in the commission's business. The receipt of an honorarium shall have no effect on the retirement benefits of a re­tired member of the commission.

History.-s. I, ch. 75-248.

121.30 Statements of purpose and intent and other provisions required for qualification un­der the Internal Revenue Code of the United States.-Any other provisions in this chapter to the contrary notwithstanding, it is specifically provided that:

(1) The purpose of this chapter is to provide pen­sion benefits for the exclusive benefit of the member employees or their beneficiaries.

(2) No part of the principal or income of the trust fund created hereunder shall be used or diverted for purposes other than for the exclusive benefit of the member employees or their beneficiaries and for the payment of administrative cost.

(3) Forfeitures, if any, shall not be applied to in­crease the benefits any member employee would oth­erwise receive under this chapter.

(4) Upon termination or partial termination, upon discontinuance of contributions, abandonment, or merger, or upon consolidation or amendment of this chapter, the rights of all affected employees to benefits accrued as of the date of any of the foregoing events, or the amounts credited to the account of any member employee, shall be and continue thereafter to be nonforfeitable except as otherwise provided by law.

(5) No benefit hereunder shall exceed the maxi­mum amount allowable by law for qualified pension plans under existing or hereafter-enacted provisions of the Internal Revenue Code of the United States.

(6) The provisions of this section are declaratory of the legislative intent upon the original enactment of this chapter and are hereby deemed to have been in effect from such date.

History.-s. I , ch. 78-108.

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F.S. 1981 STATE AND COUNTY RETIREMENT SYSTEM Ch.122

CHAPTER 122

STATE AND COUNTY OFFICERS AND EMPLOYEES RETIREMENT SYSTEM

122.01

122.02 122.03

122.04 122.05 122.051

122.06 122.061

122.o7

122.08

122.09

122.10

122.11 122.12

122.13 122.15 122.16 122.18

122.19

122.20

122.21 122.22 122.23 122.24 122.26 122.27 122.28 122.29 122.30 122.31 122.32 122.321 122.34

122.35 122.351 122.355

State and County Officers and Employees' Retirement System; consolidation; divi­sions.

Definitions. Contributions; participants; prior service

credit. Compulsory participation. Legislator services included. Eligibility of retired state employee for

Legislature; compensation. Legislative employee services included. Hospital districts and county hospital cor­

porations; officers and employees includ­ed.

Seasonal state employment included; time limit and procedure for claiming.

Requirements for retirement; classifica­tions.

Disability retirement; medical examina­tions.

Separation from service; refund of contri­butions.

Reemployment after refund. Designation of beneficiary; death of partic­

ipant; forfeiture of contributions after benefits paid; survivor benefits.

Administration of law; appropriation. Benefits exempt from taxes and execution. Employment after retirement. Certain officers and employees not cov­

ered. Change of positions; election of retirement

systems; exceptions. Blind vending-stand operators; participa-

tion by. Activation of division B. Applicable law. Definitions. Membership in division B. Funds. Contributions. Benefits. Records and reports. Appropriations. Future amendments. Repealer. County officers and employees; division B. Special provisions for certain sheriffs and

full- time deputy sheriffs. Funding. Funding by local agencies. Statements of purpose and intent and oth­

er provisions required for qualification under the Internal Revenue Code of the United States.

122.01 State and County Officers and Em­ployees' Retirement System; consolidation; divi­sions.-

(1) Former chapter 121, the State Officers and

Employees' Compulsory Retirement System, and for­mer chapter 134, the County Officers and Employees' Compulsory Retirement System, are hereby consoli­dated and shall be known as the "State and County Officers and Employees' Retirement System."

(2) Any person who is employed after the effec­tive date of this chapter, (July 1, 1955), by a county having a retirement system shall be a compulsory member of this retirement system unless he becomes a member of a local county retirement system at the time of employment.

(3) The rights of members of the retirement sys­tem established by former chapters 121 and 134, Florida Statutes, shall not be impaired, nor shall their benefits be reduced by virtue of any part of this chapter.

(4)(a) The State and County Officers and Em­ployees' Retirement System shall be deemed to be di­vided into two divisions to be designated division A and division B.

1. Division A of this system shall consist of those members of the system who were employed prior to July 1, 1963, who did not elect to become members of division B; and ss. 122.01-122.13, 122.15, 122.16, 122.18 to 122.20, inclusive and ss. 122.34 to 122.35, inclusive shall control with respect to division A and membership therein.

2. Division B of this system, established for the purposes and within the contemplation of section 218(d)(6) of the federal Social Security Act [ 42 U.S.C.A. s. 418(d)(6)] for the purpose of affording to the members of said division B the opportunity to obtain federal Social Security coverage, shall consist of those members of the system who elected to or were required to become members of division B, as hereinafter provided, and ss. 122.21-122.24, 122.26 to 122.321 shall control with respect to division B and membership therein.

(b) Notwithstanding any provision to the con­trary contained in this chapter, s. 122.34 shall apply with respect to sheriffs and "high hazard" deputy sheriffs, as provided for herein, to the extent that the provisions of such sections are at variance or in con­flict with the sections otherwise applicable, and with respect to members who are classified as "high haz­ard" members as hereinafter defined, the provisions of ss. 122.03, 122.08, 122.27, and 122.28 shall be sub­ject to the provisions of s. 122.34.

(5) Notwithstanding any provision contained herein to the contrary, the provisions of this chapter relating to age for retirement under s. 122.08 shall be subject to amendment or modification by subsequent legislation at any time and all other provisions of this chapter relating to the administration of the system or to the duties, rights, privileges, requirements, and benefits of those persons who become members on or after July 1, 1963, shall be subject to amendment, modification, deletion or substitution by act of the 1965 Legislature of the state and all such legislation shall apply retroactively to July 1, 1963, with respect to those persons who become members on or after

587

Ch.122 STATE AND COUNTY RETIREMENT SYSTEM F.S. 1981

July 1, 1963; provided, however, that such legislation shall not set the age for retirement, as specified in s. 122.08(1) to exceed the age of 65 years, nor shall such legislation affect any benefit which becomes payable to, or with respect to, such members prior to July 1, 1965.

History.- ss. I, 25, 26, ch. 29801 , 1955; s. I, ch. 57-382; ss. I, 2, ch. 63-555; s. I , ch. 67-447; s. I, ch. 69-127; s. 28, ch. 71-355.

November 16, 1946, by the National Reemployment Service in Florida subsequent to June 30, 1933, the Florida State Employment Service subsequent to June 30, 1935, or in the readjustment allowance or employment service departments of the Veterans Ad­ministration in Florida between July 1, 1944, and January 1, 1950, and who continued in employment with the state or any county without more than one interruption in the performance of service, this inter-

122.02 Definitions.-The following words and ruption not to exceed 5 years, shall be entitled to phrases as used in this chapter shall have the follow- credit for continuous service for all such employment ing meaning unless a different meaning is plainly re- with the named agency or department, and shall have quired by the context: such time added to their aggregate number of years

(1) "State and county officers and employees" of service; provided further, that any such employee shall include all full-time officers or employees who claiming such credit shall pay into the State and receive compensation for services rendered from County Officers and Employees' Retirement Trust state or county funds, or from funds of drainage dis- Fund an amount equivalent to the amount which tricts or mosquito control districts of a county or would have been placed in the fund had such employ­counties, or from funds of the State Board of Admin- ee been paying into the fund from July 1, 1945, on istration or from funds of closed bank receivership the basis of the wages paid to such employee by the accounts or from funds of any state institution or Federal Government, plus interest thereon at the who receive compensation for employment or service rate of 3 percent compounded annually until July 1, from any agency, branch, department, institution or 1975, and thereafter at the rate of 6.5-percent inter­board of the state, or any county of the state, for ser- est compounded annually until date of payment; and vice rendered the state or county from funds from provided further, that such persons shall furnish any source provided for their employment or service proper proof from the governmental agency showing regardless of whether the same is paid by state or the payment of wages for such service and that such county warrant or not; provided that such compensa- persons are not claiming and have not been allowed tion in whatever form paid shall be specified in terms credit for such service in a federal or any other retire­of fixed monthly salaries by the employing state or ment system, except those persons formerly with the county agency or state or county official and shall not War Manpower Commission who, prior to 1961, re­include amounts allowed for professional employees ceived federal service credit. Leave of absence shall for special or particular service or for subsistence or be construed to cover any officer or employee of the traveling expenses; provided further the division state or county who was serving as such during the shall prescribe appropriate procedure for contribu- calendar year of 1940, or any time subsequent there­tion deduction out of such compensation in accord- to, and who resigned his employment in time of war ance with the provisions of this chapter, provided or national emergency to enter military service and further that such officers and employees defined who thereafter returned to his former employment herein shall not include those officers and employees with the state or county as soon as possible after re­excepted from the provisions by s. 122.18 of this law. lease from military service.

(2) "Average final compensation" shall mean the (b) Any person claiming prior service credit un-average salary of the 10 best contributing years of the der the provisions of this subsection shall pay into last 15 years prior to retirement, or the career aver- the State and County Officers and Employees' Re­age since July 1, 1945, whichever is greater. A year tirement Trust Fund a contribution equal to 5 per­shan be 12 running months. In the event that an offi- cent of the earnings received during the period being cer or employee has not contributed to the retire- claimed, plus 3-percent interest thereon compounded ment trust fund for at least 10 years, then the average annually, such interest to commence and run from final compensation shall mean the average salary of July 1, 1945, with respect to service prior thereto and the last 10 years' service. from dates of employment with respect to service

(3) "Salary" shall mean the fixed monthly com- subsequent to June 30, 1945, and such interest shall pensation paid officers and employees, and where of- continue to be figured at the rate of 3 percent until ficers' or employees' compensation is derived from July 1, 1975, on which date and thereafter such inter­fees set by statute, salary shall be the total cash re- est shall be figured at the rate of 6.5-percent interest, muneration received from such fees. Under no cir- compounded annually until date of payment. cumstances shall salary include fees paid professional (5) If compensation for accumulated annual leave persons for special or particular services. is due and payable and is paid to the surviving spouse

(4)(a) In determining the aggregate number of and the necessary contribution is made to the retire­years of service of any officer or employee, the time ment trust fund, time for accumulated annual leave, of military service between 1939 and 1946 by the em- not to exceed 30 working days, shall be added to the ployee on leave of absence shall be added to the years aggregate number of years service and to the mem­of state or county service. Credit for any other mili- her's age, provided such time is needed to make the tary service shall not exceed 4 years; provided that member eligible for retirement benefits at the time of those individuals who were employed by the War death, in which event the retirement benefits shall be Manpower Commission in Florida (or on military computed on the basis of the retirement age specified leave from the War Manpower Commission) prior to in ss. 122.08(1) and 122.08(2)(a) if the member died

588

F.S. 1981 STATE AND COUNTY RETIREMENT SYSTEM Ch. 122

prior to July 1, 1963, or on the basis of a retirement age of 65 years if the member died on or after July 1, 1963. Otherwise aggregate number of years of service shall mean the total number of years, and fractional parts of years, of service of any officer or employee omitting intervening years and fractional parts of years, when such officer or employee may not be em­ployed by the state or county. Provided that any non­academic employee of a school board shall receive a full year's service credit for all years under the fol­lowing conditions:

(a) Provided all necessary contributions have been made to the retirement trust fund.

(b) Provided the employee is employed and re­ceives salary for the full school year.

(6) "Division" means the Division of Retirement of the Department of Administration.

History.-s. 2, ch. 29801, 1955; ss. 1-3, ch. 57-364; s. 1, ch. 57-813; s. 2, ch. 61 -119; s. 1, ch. 61-469; s. 1, ch. 61-422; s. 1, ch. 63-453; s. 3, ch. 63-555; s. 8, ch. 65-484; ss. 1, 2, ch. 67-412; ss. 31, 35, ch. 69-106; s. 39, ch. 71-377; s. 1, ch. 73-326; s. 3, ch. 74-328.

cers and Employees' Retirement System shall be classed as new members of the State and County Of­ficers and Employees' Retirement System and any service rendered by such employees as municipal of­ficers or employees, prior to becoming compulsory members of the State and County Retirement Sys­tem, shall not be allowed.

(b) This subsection shall not apply to members covered under s. 122.32, when transferred to state employment by statute on or after July 1, 1967. Should such employees be transferred by statute, they shall be transferred from division A to division B with service credit under division A up until date of transfer and service credit under division B there­after.

(2) Any officer or employee who held office or was employed by the state or a county of the state on July 1, 1945 or October 1, 1950, and has been holding office or has been continuously employed from April 1, 1955:

(a) May receive credit for prior service rendered 122.03 Contributions; participants; prior subsequent to 1945;

service credit.- (b) Credit for service rendered prior to July 1, (1)(a) From and after July 1, 1955, the officer or 1945, shall be continuous except that one period of

board paying salaries to officers or employees enti- absence not more than 5 years shall be allowed, and tled to the benefits of this law shall deduct 6 percent in computing such service credit, the period of ab­from each installment of salary of each officer or em- sence shall not be creditable service. ployee so long as such officer or employee shall hold (c) Provided any person receiving prior service office, or be employed and said amount so deducted credit under (a) or (b) pays into the retirement trust shall be deposited in a special trust fund hereby es- fund the amount he would have paid had he been a tablished in the State Treasury, to be known as the member since July 1, 1945, plus interest compounded "State and County Officers and Employees' Retire- annually from date of service to date of payment at ment Trust Fund." Provided further, whenever any the rate of 3 percent for any period of time before county now or hereafter authorized by law to take July 1, 1975, and at the rate of 6.5 percent com­over and perform the functions of a municipality, ex- pounded annually for any period of time after and in­ercises such power and takes over functions hereto- eluding July 1, 1975; however, no officer or employee fore performed by a municipality, and as a result shall make contributions under this section for less thereof municipal employees become county employ- than 10 years or for his total service being claimed, ees and are paid salaries from county funds, such em- whichever is less. ployees who are members and continue to be mem- (3) Any officer or employee claiming prior service hers of a municipal retirement system shall not be el- under subsection (2) of this section shall make the re­igible to participate in the State and County Officers quired payment on or before the time of actual retire­and Employees' Retirement Trust Fund. Such em- ment. ployees, whose pension or retirement rights are oth- (4) Any officer or employee who formerly rejected erwise preserved, who by merger, transfer or assign- the provisions of the retirement law may elect to be­ment of governmental units or functions, become come a member of the retirement system at any time. county employees, shall not lose their municipal pen- Any person becoming a member under this subsec­sion or retirement rights, or any reserves accrued to tion shall not receive any prior service credit. their benefit during their period of employment with (5) Any state or county officer or employee who a municipality and the county is authorized to pay prior to becoming a state or county officer or employ­into such municipal retirement system during the pe- ee was a member of the Department of Public Safety riod that such employees remain as county employees Pension Fund, and who is not receiving retirement the sums of money previously paid by the municipali- benefits under said fund, shall be a compulsory mem­ty for the benefits of such employees, and may make her of the State and County Officers and Employees' appropriate deductions from the employees' salaries Retirement System, and if any such state or county to preserve their retirement benefits. Provided fur- officer or employee has not received a refund from ther, such employees who by merger, transfer or as- the Department of Public Safety Pension Fund, the signment of government units or functions, become amount he has paid into said fund, plus the amount county employees shall have 6 months from the date the state has paid into said fund to match the em­they become county employees to elect to remain in ployee's payment, shall be transferred from the De­the retirement system of which they were members partment of Public Safety Pension Fund to the State as municipal employees or become compulsory mem- and County Officers and Employees' Retirement hers of the State and County Officers and Employ- Trust Fund, or if such person has received a refund ees' Retirement System. Such employees becoming from the Department of Public Safety Pension Fund, compulsory members of the State and County Offi- then any such state or county officer or employee

589

Ch.122 STATE AND COUNTY RETIREMENT SYSTEM F.S. 1981

shall, within 24 months from the time such person becomes a state or county officer or employee, or within 24 months from July 1, 1963, whichever is the later date, pay into the State and County Officers and Employees' Retirement Trust Fund 5 percent of the salary he has received from the Department of Public Safety, beginning with July 1, 1945, to June 30, 1955, inclusive and from July 1, 1955, 6 percent of the salary he has received from the Department of Public Safety, plus 3 percent per annum interest thereon. Thereupon the total time spent with the De­partment of Public Safety since its creation in chap­ter 19551, Acts of 1939, shall be added to and com­puted with such person's service as a state or county officer or employee. No state or county officer or em­ployee who is receiving benefits under the Depart­ment of Public Safety Pension Fund shall be eligible to become a member of the State and County Offi­cers and Employees' Retirement Trust Fund.

(6) Any officer or employee who held office or was employed by the state or a county of the state continuously from May·1, 1959, and who has not pre­viously received credit for, or is not eligible to claim credit for, prior years of service under subsection (2); or any officer or employee who holds office or is em­ployed by the state or a county of the state on June 1, 1961, and is continuously employed; or any officer or employee who holds office or is employed by the state or county of the state after June 1, 1961, and who is continuously employed for 3 years, during which period of time no back payments may be made:

(a) May claim .credit for all prior years of service under the conditions hereinafter set forth.

(b) Credit for service prior to July 1, 1955, may be allowed, provided a contribution of 5 percent of all salary received in the period being claimed, plus in­terest compounded annually from date of service to date of payment at the rate of 3 percent for any peri­od of time before July 1, 1975, and at the rate of 6.5 percent for any period of time after and including July 1, 1975, is made to the State and County Offi­cers and Employees' Retirement Trust Fund on or before the time of actual retirement.

(c) Credit for service subsequent to July 1, 1955, may be allowed, provided a contribution of 6 percent of all salary received in the period being claimed, plus interest compounded annually from date of service to date of payment at the rate .of 3 percent for any peri­od of time before July 1, 1975, and at the rate of 6.5 percent for any period of time after and including July 1, 1975, is made to the State and County Offi­cers and Employees' Retirement Trust Fund on or before the time of actual retirement.

(d) Prior service allowance may be made only for those periods in which state or county records of ser­vice and salary are available, or at least three affida­vits and such other information as might be required by the division to meet the provisions of this law.

(7) A member of the retirement system created by this chapter who has been eligible or becomes eli­gible to receive workers' compensation payments for an injury or illness occurring during his employment while a member of any state retirement system shall be subject to the following provisions:

(a) If the member receives no salary payments for the period of time he receives workers' compensation payments, upon his return to active employment, he shall receive full retirement credit for the period for which workers ' compensation payments were re­ceived. No employee or employer contributions shall be required in order for the member to receive retire­ment credit for such period. Such credit shall be based on the member's rate of monthly compensation immediately prior to his receiving workers' compen­sation payments;

(b) If the member receives partial salary for the period of time he receives workers' compensation payments, the required employee contributions shall be deducted from his partial salary each pay period, and, upon his return to active employment, he shall receive full retirement credit for the period for which workers' compensation payments were received. Such credit shall be based on the member's rate of month­ly compensation immediately prior to his receiving workers' compensation payments; or

(c) If the member is retained in full-pay status in lieu of receiving workers' compensation payments, the required employee contributions shall be deduct­ed from his salary each pay period, and he shall re­ceive retirement credit for such period in the same manner by which he would have received credit had he not been injured or incapacitated.

(8) Any widow of a county official or former county official, who was formerly employed full time in the office of the county official and who is present­ly employed by the said county official or is a county official of any such county and -who did not receive compensation for a period of more than 10 years as such employee, may receive credit for retirement purposes as provided for in this chapter by:

(a) Contributing to the said retirement trust fund on a salary computed on the basis of one-third of the compensation received by the said county official for the period of time the said employee did not receive any compensation, and interest on said contribution shall be paid at the rate of 3 percent per annum from July 1, 1945.

(b) Submitting affidavits from one assistant au­ditor general and two county officials or former coun­ty officials from any such county to substantiate said employment.

(9) The surviving spouse or other dependent of any member whose employment is terminated by death shall, upon application to the director of the Division of Retirement of the Department of Admin­istration, be permitted to pay the required contribu­tions for any service performed by the member which could have been claimed by the member at the time of his death. Such service shall be added to the cred­itable service of the member and shall be used in the calculation of any benefits which may be payable to the surviving spouse or Qther surviving dependent.

History.-s. 3, ch. 29801 , 1955; s. 1, ch. 57-350; ss. 1, 2, ch. 57-363; s. 1, ch. 57-1986; s. 1, ch. 59-203; s. 1, ch. 59-285; s. 1, ch. 59-303; s. 2, ch. 61-119; s. 1, ch. 61 -291; s. 1, ch. 61 -434; s. 9, ch. 63-555; s. 8, ch. 65-484; s. 8, ch. 69-82; ss. 31, 35, ch. 69-106; s. 1, ch. 69-124; s. 1, ch. 69-128; s. 1, ch. 69-1753; s. 2, ch. 72-334; s. 3, ch. 72-345; s. 3, ch. 72-347; s. 4, ch. 74-328; s. 58, ch. 79-40.

122.04 Compulsory participation.-The pro-

590

F.S. 1981 STATE AND COUNTY RETIREMENT SYSTEM Ch.122

visions of this law shall be compulsory as to all per­sons who enter the employment of the state or county of the state on or after July 1,1947, and there shall be deducted from the salary of every officer and employ­ee who thereafter enters the employment of the state or county of the state 6 percent as provided for in s. 122.03. All persons entering the service of the state or county of the state after July 1, 1947, shall be consid­ered new employees or new officers and no prior ser­vice of such employees or officers shall be computed as part of their aggregate number of years of service under this law, except employees in military service on leave of absence who return immediately from military service to the service of the state or county of the state. Provided further that any person who is employed after the effective date of this chapter by a county having a retirement system shall be a compul­sory member of this retirement system unless he be­comes a member of its local retirement system.

History.-s. 4, ch. 29801, 1955.

122.05 Legislator services included.-(!) The aggregate days of service heretofore or

hereafter rendered the State Legislature as a member of the Senate or House of Representatives by any participants of the State and County Officers and Employees' Retirement System shall be computed as a part of the aggregate years of state or county ser­vice of such participant in said retirement system, and it shall be the duty of state officials administer­ing the provisions of said system to allow any such participant such legislative service, together with other service rendered by such participant to the state or county.

(2) The division and state officials administering said retirement system shall make the contribution deductions required by law from the compensation hereafter received by any of the said participating members of the Legislature for service rendered the State Legislature in the same manner as in the case of other state employment.

(3) Any member of the Legislature on the effec­tive date of this chapter may claim credit for all prior service as such member by paying into the State and County Officers and Employees' Retirement Trust Fund the required amount as computed by the divi­sion, plus 3-percent interest compounded annually until July 1, 1975, and thereafter at the rate of 6.5-percent interest compounded annually until date of payment and upon making such payment shall be entitled to receive credit for his full terms as such legislator. Provided further that any member of the Legislature who previously had vested rights under the retirement law would not have his benefits accu­mulated at the time he takes office as such legislator reduced by virtue of such service as a legislator.

(4) Any member of the Legislature who had vest­ed rights under the retirement law, prior to becoming a member of the Legislature, may use the average sal­ary of the best 10 years of the last 15 years of credit­able service earned prior to becoming a member of the Legislature.

(5) Any member of the Legislature who is a mem­ber of any state and county retirement system on the effective date, or any future member of the Legisla-

ture, may pay into any state and county retirement trust fund, based on his prior or future service, 45 percent of his salary for the first 10 years of service, 60 percent of his salary for the second 10 years, and 75 percent of his salary for the third 10 years, said salary to be considered during his total service, $100 per month. In computing the retirement benefit for such members of the Legislature, the average final compensation shall be the amount that a 6-percent contribution would have applied to produce the con­tribution required above.

History.-s. 5, ch. 29801, 1955; s. 1, ch. 59-461; s. 2, ch. 61-119; s. 1, ch. 67-581; ss. 31, 35, ch. 69-106; s. 5, ch. 74-328.

122.051 Eligibility of retired state employee for Legislature; compensation.-Any retired state employee who is presently drawing retirement bene­fits under any state retirement system may, as any other citizen, serve in the Legislature without affect­ing in any way his retirement status or the receipt of retirement funds while a member of the Legislature. Such person may be paid the salary of a legislator, and per diem and mileage in connection with his offi­cial legislative duties in addition to his retirement benefits during his term of legislative service except that service as a legislator after retirement shall not increase retirement benefits.

History.-s. I, ch. 65-476.

122.06 Legislative employee services in­cluded.-

(1) Aggregate days of attache service heretofore or hereafter rendered the State Legislature by any participant of the State and County Officers and Em­ployees' Retirement System shall be computed as a part of the aggregate years of state service of such participant in said retirement system, and it shall be the duty of state officials administering the provi­sions of said system to allow any such participant such legislative attache service, together with other service rendered by such participant to the state or county.

(2) The division and other state officials adminis­tering said retirement system shall make the contri­bution deductions required by law from the compen­sation hereafter received by any of the said partici­pating attaches for service rendered the State Legis­lature in the same manner as in the case of other state employment.

History.-ss. 6, 7, ch. 29801, 1955; ss. 31, 35, ch. 69-106.

122.061 Hospital districts and county hospi­tal corporations; officers and employees includ­ed.-

(1) Boards of hospital districts and county hospi­tal corporations may elect to bring employees of such districts or corporations under the provisions of the retirement law. Once this election is made it may not be revoked and all present and future employees shall be compulsory members of the State and Coun­ty Officers and Employees' Retirement System.

(2) All boards of hospital districts and county hospital corporations who now have officers and em­ployees participating in the State and County Offi­cers and Employees' System will continue to have such coverage as provided by this chapter. The pre-

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Ch.122 STATE AND COUNTY RETIREMENT SYSTEM F.S. 1981

sumption being that such boards have elected to come under the law.

(3) The rights of any officer or employee who is a member of the State and County Officers and Em­ployees' Retirement System or who is receiving bene­fits under the provisions of this chapter, by virtue of Attorney General's opinion and Comptroller's rulings rendered prior to the declaratory decree of the Cir­cuit Court of the Second Judicial Circuit of Florida, March 1957, shall not be impaired or reduced.

History.- ss. 1-4. ch. 57-47; s. I, ch. 67-612.

122.07 Seasonal state employment included; time limit and procedure for claiming.-

(1) Any seasonal state employee who works for and draws compensation from the state, or any of its departments, for a period of more than 6 months during the fiscal year, that is, from July 1 of any year to June 30 of the following year, inclusive, but who works the remainder or a part of such fiscal year in the same or a similar capacity for another state or de­partment thereof, may receive credit for the actual time employed by another state or department there­of, provided that such employee shall comply with the conditions hereinafter specified.

(2) Any state employee in the classification set forth in s. 122.01 may elect to receive credit as a state employee under the State and County Officers and Employees' Retirement System and shall thereupon within 30 days after the end of each fiscal year file with the division upon a form to be provided by the division a statement under oath stating his name and permanent address within this state; the nature of his employment in the state during said fiscal year, giv­ing the dates of commencement and termination thereof; the nature of his work within the state, to­gether with his compensation from the state during said period, together with a statement that he was employed in employment of the same character out of the state during the remainder of such fiscal year; and such other information as may, in the opinion of the division, be necessary or appropriate in the carry­ing out of this section. Such statement shall be ac­companied by a cash payment to the division by such employee of an amount equal to 6 percent, plus the state's percentage of contribution, of the salary drawn by such employee during his last full month of employment by the state, or any department thereof, for each month during said fiscal year for which such employee was not employed by the state, or any de­partment thereof, but was employed by some other state. The division shall thereupon examine said statement, and if the same complies with this law, the division shall thereupon deposit said payment in said retirement trust fund and shall advise such per­son that he is entitled to credit for said additional contribution under said State and County Officers and Employees' Retirement System. The fiscal year herein referred to shall be from July 1 to June 30 of the succeeding calendar year.

(3) If such person fails, or does not elect, to file said statement and make said tender within 30 days after the end of such fiscal year, such employee shall forfeit any right to credit for such time of unemploy­ment in Florida.

(4) Notwithstanding any other provision of this section, any member who would have been entitled to receive credit under this section had such member claimed such credit within the time prescribed in subsection (2) may receive credit under this section for any period to which such member would have been so entitled if such member files, prior to July 1, 1979, the required statement and cash payment, plus interest compounded annually from the date such statement was required to have been filed under sub­section (2) to the date of payment at the rate of 3 percent for any period of time before July 1, 1975, and at the rate of 6.5 percent for any period of time after June 30, 1975; provided however, that members purchasing out-of-state service pursuant to this sec­tion shall not claim such service in any other retire­ment system.

History.-s. 8, ch. 29801 , 1955; s. 2, ch. 61-119; ss. 31, 35, ch. 69-106; s. 1, ch. 78-279; s. 27, ch. 79-164.

122.08 Requirements for retirement; classi­fications.-There shall be two retirement classifica­tions for all state and county officers and employees participating herein as hereafter provided in this sec­tion:

(1) Any state or county officer or employee who has attained normal retirement age, which shall be age 60 for persons who had become a member prior to July 1, 1963, and age 62 for persons who had or shall become a member on or after July 1, 1963, and has accumulated at least 10 years' service in the aggre­gate within the contemplation of this law, and who has made or makes contributions to the State and County Officers and Employees' Retirement Trust Fund for 5 or more years as prescribed in this law, may voluntarily retire from office or employment and be entitled to receive retirement compensation, the amount of which shall be 2 percent for each year of service rendered, based upon the average final com­pensation, payable in equal monthly installments, upon his own requisition. Requisition requirements shall be set by the division.

(2)(a) Any state or county officer or employee who has attained the age of 55 or more and has accu­mulated at least 10 years' service in the aggregate within the contemplation of this law and who has made or makes contributions to the State and Coun­ty Officers and Employees' Retirement Trust Fund for 5 or more years as prescribed by this law but who is not eligible to retire in accordance with subsection (1) may elect to retire and receive a reduced benefit, which would be the actuarial equivalent of the bene­fits provided in subsection (1).

(b) Any county officer or employee who has served as sheriff or a full-time deputy sheriff for the last 10 years or more of his employment and has at­tained the age of 50 or more and accumulated at least 10 years' service in the aggregate within the contem­plation of this law, and who has made or makes con­tributions to the State and County Officers and Em­ployees' Retirement Trust Fund for 5 or more years, as prescribed by this law, but who is not eligible to retire in accordance with subsection (1), may elect to retire and receive a reduced benefit, which would be

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F.S. 1981 STATE AND COUNTY RETIREMENT SYSTEM Ch.122

the actuarial equivalent of the benefits provided in subsection (1).

(3) Any state or county officer or employee shall have the right at any time prior to receipt of his first monthly installment of retirement compensation to elect to receive a reduced retirement compensation with the provision that if such officer or employee dies after retirement compensation installments have commenced the excess if any of his total contribu­tions made to the retirement trust fund, without in­terest, over the total retirement compensation re­ceived by him shall be paid in accordance with the beneficiary designation of this law. The amount of such reduced retirement compensation shall be the actuarial equivalent of the amount of such retirement compensation otherwise payable to him.

(4) Any state or county officer or employee shall have the right at any time prior to receipt of his or her first monthly installment of retirement compen­sation to elect to receive a reduced retirement com­pensation with the provision that the surviving spouse shall continue to draw such reduced retire­ment compensation, or one-half thereof if so desig­nated, so long as such spouse shall live. The amount of such reduced retirement compensation shall be the actuarial equivalent of the amount of such retirement compensation otherwise payable to such officer or employee. Any state or county officer or employee who becomes eligible for retirement and continues to hold office or be employed shall be construed to have selected the option herein which will afford the sur­viving spouse the greatest amount of benefits. Should such officer or employee die before retiring, his sur­viving spouse shall be entitled to receive either the accumulated contributions of such officer or employ­ee at the date of death or the reduced retirement compensation to which the surviving spouse would have been entitled under such option, calculated on the assumption that such officer or employee retired on the date of his death; provided, that for all those persons who become members of the retirement sys­tem on or after July 1, 1963, the amount of retire­ment compensation otherwise payable to the member at his date of death shall be determined on the basis of a retirement age of 62 years. Any officer or em­ployee shall have the right at the time of retirement to change the option so provided; and, should the op­tion be changed or not at the time of retirement, such option shall be effective immediately upon retire­ment and thereafter may not be revoked.

(5) Tables for computing the actuarial equivalent shall be approved by the division.

(6) Any person retiring under the disability pro­vision of this chapter shall not be entitled to the op­tions of subsection (4).

(7) No state or county official or employee who has a shortage in his accounts, as certified by the Au­ditor General, may retire or receive any benefits un­der this chapter so long as such shortage exists.

(8) Any member of the retirement system whose rights have been preserved under s. 122.01(3) and who has had 30 years of service may exercise the op­tion provided for in subsection (4) as it applies to persons who are eligible for normal retirement bene­fits.

(9) Notwithstanding any other provision in this chapter to the contrary, the following provisions shall apply to any officer or employee who has accumulat­ed at least 10 years of service and dies;

(a) If the deceased member's surviving spouse has previously received a refund of the member's contributions made to the retirement trust fund, such spouse may pay to the division an amount equal to the sum of the amount of the deceased member's contributions previously refunded and interest at 3 percent compounded annually on the amount of such refunded contributions from the date of refund until July 1, 1975, and thereafter at the rate of 6.5 percent interest compounded annually to the date of pay­ment to the division, and by so doing be entitled to receive the monthly retirement benefit provided in paragraph (c).

(b) If the deceased member's surviving spouse has not received a refund of the deceased member's contributions, such spouse shall, upon application to the division, receive the monthly retirement benefit provided in paragraph (c).

(c) The monthly benefit payable to the spouse described in paragraph (a) or paragraph (b) shall be the amount which would have been payable to the deceased member's spouse, assuming that the mem­ber retired on the date of his death and had selected the option in subsection (4) which would afford the surviving spouse the greatest amount of benefits, such benefit to be based on the ages of the spouse and member as of the date of death of the member. Such benefit shall commence on the first day of the month following the payment of the aforesaid amount to the division, if paragraph (a) is applicable, or on the first day of the month following the receipt of the spouse's application by the division, if para­graph (b) is applicable.

(10) Upon the death of a retired member or bene­ficiary receiving monthly benefits under this chapter, the monthly benefits shall be paid through the last day of the month of death and shall terminate, or be adjusted, if applicable, as of that date in accordance with the optional form of benefit selected at the time of retirement.

History.-s. 9, ch. 29801, 1955; ss. 3-5, ch. 57-363; s. I, ch. 57-210; s. I, ch. 59-465; s. 2, ch. 61-119; s. 4, ch. 63-555; ss. I, 2, 8, ch. 65-484; s. 8, ch. 69-82; ss. 31, 35, ch. 69-106; s. I, ch. 69-132; s. I, ch. 72-330; ss. 6, 10, ch. 74-328; s. 5, ch. 80-130.

122.09 Disability retirement; medical exam­inations.-Whenever any officer or employee of the state or county of the state has service credit as such officer or employee for 10 years within the contem­plation of this law, the last 5 years of which, except for a single break not to exceed 1 year, must be con­tinuous, unbroken service and who is regularly con­tributing to the State and County Officers and Em­ployees' Retirement Trust Fund and shall while holding such office or employment become perma­nently and totally disabled, physically or mentally, or both, from rendering useful and efficient service as such officer or employee, such officer or employee may retire from his office or employment, and upon such retirement he shall be paid, so long as his per­manent and total disability continues, on his own monthly requisition, from the State and County Offi-

593

Ch.122 STATE AND COUNTY RETIREMENT SYSTEM F.S. 1981

cers and Employees' Retirement Trust Fund herein­after established, retirement compensation as provid­ed in s. 122.08; provided that no officer or employee retiring under this section shall receive less than 50 percent of his average final compensation not to ex­ceed $75, provided further that the minimum bene­fits shall not apply to an officer or employee who has attained the age of 60 or is receiving disability pay­ments from social security. No officer or employee of the state and county of the state shall be permitted to retire under the provisions of this section until ex­amined by a duly qualified physician or surgeon or board of physicians and surgeons, to be selected by the Governor for that purpose, and found to be dis­abled in the degree and in the manner specified in this section. Any officer or employee retiring under this section shall be examined periodically by a duly qualified physician or surgeon or board of physicians and surgeons to be selected by the Governor for that purpose and paid from the retirement trust fund herein provided for, at such time as the Department of Administration shall direct to determine if such total disability has continued and in the event it be disclosed by said examination that said total disabili­ty has ceased to exist, then such officer or employee shall forthwith cease to be paid benefits under this section. Reference to s. 122.08 is for the purpose of computing benefits only. Any person heretofore re­tired under this section shall be eligible to qualify for the minimum benefits provided herein; however, minimum benefits shall not be paid retroactively.

History.-s. 10, ch. 29801, 1955; s. 4, ch. 57-364; s. 2, ch. 61-119; ss. 2, 3, ch. 67-371; s. 1, ch. 69-121; s. 1, ch. 69-326; ss. 31, 35, ch. 69-Ul6.

122.10 Separation from service; refund of contributions.-

(1) Should any officer or employee leave the ser­vice of the state before accumulating aggregate time of 10 years toward retirement, such officer or employ­ee shall be entitled to a refund of 100 percent of his contributions made to the retirement trust fund without interest, provided however that any such of­ficer or employee may leave such contributions in said retirement trust fund for a period not exceeding 5 years pending reemployment, and upon reemploy­ment by the state or county within those 5 years re­ceive credit for such prior service. Any such officer or employee who fails to be reemployed by the state or a county of the state within those 5 years shall be re­funded 100 percent of his contributions to the retire­ment trust fund, without interest, and all prior ser­vice credit shall be forfeited should he be reemployed at a later date. Should any officer or employee who has 10 or more years service within the contempla­tion of this law leave the service of the state and county, such officer or employee may leave said con­tributions in the retirement trust fund and receive the same retirement benefits as provided for current employees in s. 122.08, provided however that such officer or employee shall have made contributions as required by this law, or such officer or employee may elect to accept a refund of 100 percent of his contri­butions to the fund, without interest. Any officer or employee who accepts such refund shall be forever barred from receiving prior service credit under the

provisions of this law. No officer or employee who has received benefits under this law shall be entitled to a refund.

(2) Any former members of the state or county retirement systems established by former chapters 121 and 134, that terminated their service after 10 or more years of service and received a refund of 50 per­cent of their retirement contributions may, upon written request to the division, receive a refund of any balance credited to their account provided they are not members of the state and county retirement system under this chapter.

(3) Any person who hereafter elects to receive re­tirement benefits under s. 112.05, shall not be enti­tled to the retirement benefit of this chapter, except for the refund of his contributions to the retirement trust fund as provided in this section; likewise any person who elects to receive retirement benefits un­der this chapter shall thereby become ineligible to re­ceive retirement benefits under s. 112.05.

(4) Should any officer or employee elect to re­ceive a refund as provided in this section, his applica­tion for refund shall be submitted in the manner pre­scribed by the regulations adopted by the division and shall accompany the payroll certification, sub­mitted to the division, on which he was last paid pri­or to termination. The division shall pay the entire refund due within 45 days after the first day of the month subsequent to receipt of such application for refund and said payroll certification.

(5) Notwithstanding any other provision in this chapter to the contrary, any officer or employee who has accumulated an aggregate of 25 or more years of service and terminates his employment and elects to receive a refund of his contributions made to the re­tirement trust fund in accordance with this section may, at any time prior to July 1, 1970, pay to the di­vision an amount equal to the sum of: The amount of his contributions previously refunded and interest at 3 percent compounded annually on the amount of his refunded contributions from the date of refund to the date of payment to the division. Upon the payment of such amount, the former member of the retirement system shall be reinstated and shall receive the monthly retirement benefit to which he is entitled under this section, such benefit to commence on the latter of the first day of the month following the pay­ment by the reinstated member of the aforestated amount to the division or the date he otherwise would have been entitled to such benefits. The divi­sion, at its discretion, may require that such retire­ment benefits be paid under one of the optional forms of payment (described in s. 122.08) as chosen by the division.

History.-s. 11, ch. 29801, 1955; s. 2, ch. 59-461; s. 2, ch. 61-119; s. 7, ch. 63-555; s. 1, ch. 67-285; ss. 31, 35, ch. 69-106; s. 1, ch. 69-133. cf.-s. 112.0501 Ratification of certain dual retirements.

122.11 Reemployment after refund.-Any state or county officer or employee whose contribu­tions have been refunded as provided ins. 122.10 and who is subsequently reemployed by the state or a county of the state shall be treated as those persons who enter employment of the state or a county of the state the first time as provided in s. 122.03; provided, however, if any former member complies with s. 122.03(6) and receives service credit for 20 or more

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F.S. 1981 STATE AND COUNTY RETIREMENT SYSTEM Ch.122

years for service rendered prior to June 1, 1961, such member shall not lose his rights under s. 122.01(3).

History.-s. 12, ch. 29801, 1955; s. I , ch. 67-577.

122.12 Designation of beneficiary; death of participant; forfeiture of contributions after benefits paid; survivor benefits.-

(!) Any officer or employee may file, in writing, a designation of beneficiary and it shall be the duty of the division to refund 100 percent, without interest, of the contributions made to the retirement trust fund by such deceased officer or employee to such designated beneficiary. The officer or employee shall have the privilege of changing, in writing, the desig­nated beneficiary at any time. Upon failure to desig­nate a beneficiary, the refund shall be made to the persons in the same order as designated ins. 222.15, for wages due deceased employees. If the deceased of­ficer or employee has received any benefits under this law, no refund shall be made unless such officer or employee has elected to accept benefits under s. 122.08(3) or (4).

(2) Provided further any heir who received a re­fund under s. 10 of chapter 22938, Laws of 1945, or s. 10 of chapter 22831, Laws of 1945, shall be entitled to receive any accumulated retirement contributions credited to the deceased officer or employee's ac­count.

History.- s. 13, ch. 29801, 1955; s. 5, ch. 57-364; s. 2, ch. 61-119; ss. 31, 35, ch. 69-106.

122.13 Administration of law; appropriation. -The Division of Retirement of the Department of Administration shall make such rules and regulations as are necessary for the effective administration of this chapter, and the cost is hereby annually appro­priated and shall be paid into the State and County Officers and Employees' Retirement Trust Fund out of the Intangible Tax Fund in the State Treasury in the amount necessary to administer efficiently the state and county retirement law. At the end of each fiscal year, beginning with the fiscal year 1959-1960, the administrative cost of the state and county retire­ment system for the fiscal year just ended shall be re­funded to the General Revenue Fund from interest earned on investments made subsequent to June 30, 1959.

History.- s. 14, ch. 29801, 1955; s. 2, ch. 59-285; s. 2, ch. 61-119; ss. 2, 3, ch. 67-371; ss. 31, 35, ch. 69-106; s. I, ch. 73-326.

122.15 Benefits exempt from taxes and exe­cution.-

(1) The pensions, annuities, or any other benefits accrued or accruing to any person under the provi­sions of this chapter and the accumulated contribu­tions and the cash securities in the funds created un­der this chapter are hereby exempted from any state, county or municipal tax of the state and shall not be subject to execution or attachment or to any legal process whatsoever and shall be unassignable.

(2) This subsection shall have no effect upon this section except that the division may, upon written re­quest from the retired member, deduct premiums for group hospitalization insurance from the retirement benefit paid such retired member.

History.- s. 16, ch. 29801 , 1955; s. I, ch. 59-305; ss. 31, 35, ch. 69-106.

122.16 Employment after retirement.-(!) Any person who is retired under this chapter,

except under the disability retirement provisions of ss. 122.09 and 122.34, may be employed by an em­ployer that does not participate in a state-administered retirement system and may re­ceive compensation from such employment without limiting or restricting in any way the retirement ben­efits payable to such person.

(2)(a) Any person retired under this chapter, ex­cept under the disability retirement provisions of ss. 122.09 and 122.34, may be employed by an employer that participates in a state-administered retirement system and may receive compensation from such em­ployment and retirement benefits at the same time, so long as the employment does not exceed 780 hours each calendar year, or the compensation earned in such employment does not exceed $4,000 each calen­dar year, whichever limitation permits the longer em­ployment. However, such limitation shall not apply to a person age 65 or older.

(b) Any person to whom the limitation of para­graph (a) applies who will exceed such limitation shall give timely notice of this fact in writing to his employer and to the division and shall advise both of the date on which he will exceed the limitation. The division shall suspend such retired person's benefits for the remainder of the calendar year during which he continues employment in excess of the limitation of paragraph (a) . Upon commencement of the next calendar year, the division shall resume payment of the retired person's benefits until he again exceeds the employment limitation of paragraph (a), at which time his benefits shall again be suspended for the re­mainder of the calendar year. Should such person fail to provide timely notice of his employment in excess of the limitation to the division, and should he re­ceive and retain both benefits and compensation in excess of the limitation of paragraph (a), the division shall suspend his retirement benefits until he has re­paid to the retirement trust fund all benefits received after the limitation was reached.

(c) The employment by an employer of any retir­ee of any state-administered retirement system shall have no effect on the average final compensation or years of creditable service of such retiree, nor shall any deductions or contributions for retirement be made from or for the compensation received by such retiree with respect to such employment.

(d) Notwithstanding the provisions of paragraph (a), any retired person who is employed by an em­ployer under the system within 1 calendar month of retirement shall forfeit his right to benefits during that month.

(e) The limitations of this subsection shall apply to reemployment in any capacity with an employer as defined ins. 121.021(10), irrespective of the category of funds from which the person is compensated.

History.-s. 17, ch. 29801, 1955; s. 6, ch. 57-364; s. I, ch. 57-803; s. I, ch. 57-1982; s. 2, ch. 61-119; s. 8, ch. 65-484; ss. 31, 35, ch. 69-106; s. I, ch. 72-335; s. 3, ch. 72-345; s. 3, ch. 80-126; s. 7, ch. 81-307.

122.18 Certain officers and employees not covered.-This chapter shall not apply to justices of the Supreme Court or judges of the circuit court who are members of another state retirement system ap-

595

Ch.122 STATE AND COUNTY RETIREMENT SYSTEM F.S. 1981

plicable to Supreme Court judges or circuit judges, nor shall it apply to members of the Teachers' Re­tirement System or members of the Department of Public Safety Retirement System and shall not oper­ate to repeal ss. 25.101, 38.14, 38.19, 112.05, 238.01-238.16 and 321.02-321.23, nor to affect the rights of any person enjoying the benefits or entitled to enjoy the benefits of such sections.

History.-ss. 19, 20, ch. 29801, 1955. cf. - s. 121.046 Merger of Judicial Retirement System into Florida Retirement

System. s. 121.052 Membership class of certain elected state officers. Ch. 123 Justices and appeal and circuit judges retirement system.

122.19 Change of positions; election of re­tirement systems; exceptions.-

(l)(a) Any person who is a participant in any state or county retirement system, who changes his position or employment, or who is reclassified so that under any existing law such person would participate in a different retirement system, may continue to participate and come under the same retirement sys­tem in which he participated or came under before changing positions or being reclassified so long as such person remains in the employ of the state or county and continues to make the contributions re­quired by law.

(b) Any member of the Duval County Employees Pension Fund who becomes an elected state or coun­ty official, certified by the Department of State, may become a member of the State and County Officers and Employees' Retirement System as a new member upon assuming office, however, no prior service shall be allowed unless such official withdraws from the Duval County Employees Pension Fund, the same to be certified by Duval County, and complies with s. 122.03.

(2) The provisions of this section shall supersede any existing law relating to state and county retire­ment systems or pensions, provided nothing herein shall be construed to apply to state Supreme Court justices, or circuit judges who are members of anoth­er state retirement system applicable to Supreme Court justices or circuit judges, nor to members of the Department of Public Safety Retirement System nor to members of Duval County Employees' Pension Fund as provided in chapter 23259, Acts of 1945; as amended by chapters 27520 and 27523, Acts of 1951.

History.- s. 21, ch. 29801, 1955; s. I, ch. 63-568; ss. 10, 35, ch. 69-106.

122.20 Blind vending-stand operators; par­ticipation by.-

(1) All blind or partially sighted persons who are now employed or licensed by the Florida Council for the Blind as vending-stand operators or who may hereafter be so licensed or employed are hereby de­clared to be state employees within the meaning of the State and County Officers and Employees' Re­tirement System, and except as hereinafter provided shall be entitled to all the rights and benefits of other state employees thereunder.

(2) Vending-stand operators who are employed on June 15, 1953, shall have the privilege of rejecting the provisions of this law provided that written no­tice of the employees' rejection shall be filed with the proper state officials within a period of 60 days from

June 15, 1953. After such period all employees who have not filed a written rejection as provided herein shall be deemed to have made a final and irrevocable decision to participate in the State Officers and Em­ployees' Retirement System.

(3) Blindness shall not be deemed a retirable dis­ability within the provisions of the state and county retirement system for such employees as are contem­plated by this section.

(4) Participation in the State Officers and Em­ployees' Retirement System shall be compulsory for all vending-stand operators licensed and employed after June 15, 1953.

History.-s. 22, ch. 29801, 1955.

122.21 Activation of division B.-Sections 122.21-122.24, 122.26 to 122.321, inclusive, shall con­trol with respect to division B of this system and membership therein, and shall prescribe the method for activating such division.

History .-s. 2, ch. 57-382.

122.22 Applicable law.-Sections 122.01-122.13, 122.15, 122.16, 122.18 to 122.20, inclu­sive, in relation to administration of division B and to duties, rights, privileges and benefits of members of this division under this system, shall apply to said di­vision B and membership therein, except to the ex­tent that the provisions of ss. 122.21-122.24, 122.26 to 122.321, inclusive, may be at variance or in conflict therewith.

History.-s. 2, ch. 57-382.

122.23 Definitions.-In addition to those defi­nitions set forth in s. 122.02 the following words and phrases used in ss. 122.21-122.24, 122.26 to 122.321, inclusive, shall have the respective meanings set forth unless a different meaning is plainly required by the context:

(1) "System"-the general retirement system pro­vided by this chapter, with its two divisions.

(2) "Social security coverage"-old age and survi­vors insurance as provided by the Federal Social Se­curity Act.

(3) "Division" -the Division of Retirement of the Department of Administration.

(4) "Agreement"-the modification of that cer­tain agreement entered into October 23, 1951, be­tween the State of Florida and the Secretary of Health, Education and Welfare, pursuant to s. 650.03, which makes available to members of division B of this system the provisions of said agreement.

(5) "State agency" -Division of Retirement of the Department of Administration within the provisions and contemplation of chapter 650.

History.-s. 2, ch. 57-382; s. I , ch. 65-151; ss. 31, 35, ch. 69-106; s. 40, ch. 71-377; s. I, ch. 73-326.

122.24 Membership in division B.-Officers and employees, within the contemplation of this sys­tem, may become members of division B of this sys­tem in the manner and under circumstances as fol­lows:

(1) An officer or employee who is a member of this system on June 19, 1957, or who becomes such a member after June 19, 1957, and prior to execution of

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the agreement in pursuance of affirmative referen­dum as hereinafter provided, may transfer to this di­vision by electing to do so in writing filed with the administrator. While membership in division B shall date from the filing of such election with the admin­istrator, for the purposes of contributions to the sys­tem and benefits to members under division B, mem­bership in division B shall take effect upon the date of execution of the agreement.

(2) A person who becomes a member of this sys­tem after execution of the agreement shall become a member of division B of the system.

(3)(a) A person who is in a position covered by this system and who is not a member of this system but is eligible to become a member thereof shall, but only for the purposes of subsection 218(d) of the So­cial Security Act (other than paragraph (8) of said subsection), be regarded as a member of this system. If such person becomes a contributing member of this system after December 31, 1957, he shall become a member of division B as required by subsection (2) of this section. In addition he may, under the condi­tions prescribed by section 218(d)(6)(E) of the Social Security Act, and if still in a position covered by this system, obtain division B coverage effective January 1, 1956, or the date he first occupied a position cov­ered by this system, whichever is the later, by filing a written request therefor with the administrator by December 1, 1959, and paying the contributions and interest incident to such coverage.

(b) Under the conditions prescribed by section 218(d)(6)(F) of the Social Security Act, a person who was a member of division A of this system on Decem­ber 31, 1957, and who is still such a member, may transfer to division B of this system by filing a writ­ten request therefor with the administrator by De­cember 1, 1959. Social security coverage incidental to such elective membership in division B shall be effec­tive as of January 1, 1956, or the date such person be­came a member of this system, whichever is the later.

(c) Under conditions prescribed by section 218(d)(6)(F) of the Social Security Act, any person who was a member of division A of this system on December 31, 1957, and who still is a member of divi­sion A, may transfer to division B of this system by filing a written request therefor with the administra­tor in accordance with, subject to and within the time specified in the agreement or modification thereof between the state and the Secretary of Health, Edu­cation and Welfare permitting such transfer. Social security coverage incidental to such elective member­ship in division B shall be effective as of January 1, 1956, or the date such person became a member of this system, whichever is later, but in no event earlier than the effective date specified in the agreement or modification thereof. All amounts required from a member for retroactive social security coverage shall, at the time such election is made, be deducted from the individual account of the member and the differ­ence between the amount remaining in the individual account of such member and the total amount which such member would have contributed had he become a member of division B as of January 1, 1956, shall be paid into the retirement fund, and added to his indi­vidual account, prior to July 1, 1970, or by his date of

retirement if earlier. If such payment is made after July 1, 1970, the member shall be required to pay in­terest at the rate of 10 percent of the unpaid balance compounded annually each June 30 from July 1, 1972, to the date of repayment.

(4) Any highway patrolman who becomes dis­abled to the extent that he is no longer qualified for the highway patrol and is retired from the highway patrol on account of disability but is able to render useful and efficient service to the state may be em­ployed by the state or a county of the state and upon such employment become a member of the state and county retirement system under division B. Any highway patrolman who has retired from the highway patrol and is subsequently employed by the state or a county of the state shall be eligible to participate under social security in the same manner as any oth­er state or county employee.

Hiotory.-s. 2, ch. 57-382; s. 3, ch. 59-285; s. 4, ch. 65-484; s. 1, ch. 69-215; s. 29, ch. 71-355; s. 1, ch. 72-341.

122.26 Funds.-There shall be paid into the State and County Officers and Employees' Retire­ment Trust Fund, provided in formers. 122.17, con­tributions by members of division B for benefits pay­able to members under this system, and all amounts appropriated for such purpose by the state. There is hereby created in the State Treasury a fund to be known as the Social Security Contribution Trust Fund, into which shall be deposited contributions re­quired of members for social security coverage, and such amounts as may be appropriated by the state for that purpose.

Hiotory.-s. 2, ch. 57-382; s. 2, ch. 61-119.

122.27 Contributions.-From and after the date of the execution of the agreement, the officer or board paying the salary of a member of division B shall withhold the following from such salary:

(1) Four percent of such salary, which shall con­stitute the contribution of the member to this system with respect to retirement and other benefits payable under this system. The officer or board so withhold­ing such percentage of salary shall without delay de­posit the same in the State and County Officers and Employees' Retirement Trust Fund.

(2) The percentage of such salary which shall constitute the contribution of the member required for social security coverage as now or hereafter fixed by relevant federal statutes. The officer or board so withholding such percentage of salary shall deposit the same without delay in the Social Security Contri­bution Trust Fund.

(3) Any contributions made by a member of divi­sion B during the calendar years 1956 and 1957, for state and county retirement contributions, in excess of 4 percent of the member's total salary shall be re­turned to the member on the effective date of the member's retirement or applied to any shortage which may exist in the member's retirement account.

Hiotory.-s. 2, ch. 57-382; s. 4, ch. 59-285; s. 2, ch. 61-119.

122.28 Benefits.-The relevant provisions of ss. 122.01-122.13, 122.15, 122.16, 122.18 to 122.20, inclu­sive, fixing or relating to eligibility for retirement, re­tirement compensation, and other benefits payable to

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Ch.122 STATE AND COUNTY RETIREMENT SYSTEM F.S. 1981

members or for the account of members of this sys­tem in relation to members in division A hereof, shall apply with equal force and effect to members of divi­sion B, with the following exceptions:

(1) For the period of service of the member prior to the effective date of his social security coverage hereunder, retirement benefits shall be computed on average final compensation at the rate of 2 percent for each year of service rendered prior to such effec­tive date and as provided in s. 122.08. For the period of membership in division B the member's retire­ment compensation shall be computed on average fi­nal compensation at the rate of 1.5 percent for each year of service rendered after the effective date of said social security coverage.

(2) Members of division B retiring under the dis­ability provisions of this chapter shall receive not less than 20 percent of their average final compensation.

(3) For those persons who become members of the retirement system on or after July 1, 1963, the amount of such retirement compensation shall not exceed that amount which when added to the mem­ber's estimated annual primary insurance amount under social security coverage equals 80 percent of his average final compensation. The estimated annu­al primary insurance amount of the member shall be determined by the administrator on the basis of the social security coverage in effect on the member's re­tirement date, assuming that payment of such prima­ry insurance amount shall commence at the later of the member's 65th birthday or actual age of retire­ment, and that the member earned his average final compensation in each year between his date of retire­ment and his 65th l:lirthday for those members retir­ing prior to age 65.

History.-s. 2, ch. 57-382; s. 5, ch. 63-555.

122.29 Records and reports.-The adminis­trator shall maintain accurate accounts of each mem­ber of division B; and shall maintain said accounts in such manner, form and detail as shall meet the re­quirements of the federal Social Security Act and regulations in relation to the social security coverage of such member. The administrator shall from time to time make such reports as may be required by rel­evant federal laws and regulations relating to the so­cial security coverage of the members of this system.

History.-s. 2, ch. 57-382.

122.30 Appropriations.-(!) There is hereby annually appropriated from

the intangible tax fund of the state to the division as the state agency designated in chapter 650, a sum not to exceed $10,000 to defray the expenses of such agency in connection with its continuing duties in re­lation to the social security coverage provided by this law.

(2) If under the agreement social security cover­age is retroactively applicable to members of division B, there is appropriated out of the State and County Officers and Employees' Retirement Trust Fund and into the Social Security Contribution Trust Fund the amount required by applicable federal laws and regu­lations to be paid with respect to periods prior to date of execution of the agreement.

(3) There is appropriated a sufficient amount out of the State and County Officers and Employees' Re­tirement Trust Fund to the administrator to make payments to members of division B as provided.

(4) There is appropriated out of the Social Secur­ity Contribution Trust Fund for payment into the contribution fund established by s. 650.06, from time to time, such amounts as may be required for the so­cial security coverage of the members of division B.

(5) In addition to amounts appropriated by other provisions of this chapter or other laws to defray cost of administration of this system, there is hereby ap­propriated out of the Intangible Tax Fund of the state for use of the division in its administration of the two divisions of this system, the sum of $100,000, or so much thereof as may be required for that pur­pose.

(6) If in any fiscal year the amounts provided in this chapter to be paid into the State and County Of­ficers and Employees' Retirement Trust Fund by the state for members in divisions A and B of this sys­tem, and the amount required to be paid by the state into the Social Security Contribution Trust Fund for the members in division B of this system, as herein provided, shall exceed the amount available for such purposes in the Intangible Tax Fund, until the date of adjournment of the first session of the Legislature subsequent to the occurring of such deficiency, there is appropriated from the General Revenue Fund of the state and payable into the State and County Offi­cers and Employees' Retirement Trust Fund and the Social Security Contribution Trust Fund, or either of said latter funds, an amount equal to such deficiency.

(7) There is hereby appropriated out of the State and County Officers and Employees' Retirement Trust Fund and into the Social Security Contribu­tion Trust Fund the amount required by applicable federal laws and regulations to be paid with respect to 1956, 1957, 1958, and 1959 social security coverage of the members of this system who transfer from di­vision A to division B thereof between July 1, 1959, and December 1, 1959, and of the deemed members of this system who became contributing members af­ter December 31, 1957, and who, by December 1, 1959, qualify for retroactive social security coverage.

(8) There is hereby appropriated out of the State and County Officers and Employees' Retirement Trust Fund and into the Social Security Contribu­tion Trust Fund the amount required by federal laws and regulations with respect to social security cover­age for years after 1955 of the members of this system who transfer from division A to division B in accord­ance with s. 122.24(3)(c) and qualify for retroactive social security coverage.

History.-s. 2, ch. 57-382; ss. 5, 7, ch. 59-285; s. 2, ch. 61·119; s. 5, ch. 65-484; s. 1, ch. 67-411; ss. 9, 47, ch. 69-353; ss. 31, 35, ch. 69-106; s. 30, ch. 71-355; s. 43, ch. 73-333.

122.31 Future amendments.-Where in this law reference is made to state and federal laws, it shall be understood that such references are intended to include such laws as they now exist or may hereaf­ter be amended.

Histoty.-s. 2, ch. 57-382.

122.32 Repealer.-It is the legislative intent

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F.S. 1981 STATE AND COUNTY RETIREMENT SYSTEM Ch.122

that members of this system be provided with social security coverage only in pursuance of the method prescribed herein for becoming members of division B, anything in chapter 650 to the contrary notwith­standing, provided however that the officials and em­ployees of any county or counties which have prior to June 19, 1957, elected to accept social security under the provisions of chapter 650 shall not be affected hereby; provided further, all present and future em­ployees of such counties shall remain in or become members of division A as provided in s. 122.01 of the State and County Officers and Employees' Retire­ment System; and chapter 29968, Acts of 1955, chap­ter 410, Florida Statutes, are hereby repealed; and provided, that nothing contained in the provisions of this law shall repeal or in any way affect chapter 23259, Laws of 1945, as amended.

History.-s. 2. ch. 57-382.

122.321 County officers and employees; di­vision B.-Effective July 1, 1969, the provisions of s. 122.32 relative to future officials and employees of any county which elected to accept social security un­der the provisions of chapter 650 prior to June 19, 1957, shall be of no further force and effect. On and after July 1, 1969, all new and future officers and em­ployees of any county coming under the provisions of s. 122.32 shall become members of division B unless some new consolidated state retirement system be­comes effective on that date.

History.-s. 1, ch. 69-129; s. 44, ch. 73-333.

122.34 Special provisions for certain sher­iffs and full-time deputy sheriffs.-

(1)(a) In addition to sheriffs and full-time deputy sheriffs, the provisions of this section shall apply with respect to members who are officers or full-time employees of the state or the several counties of the state whose duties are to enforce the criminal laws of the state, except for those officers or full-time em­ployees holding office or employed on or before July 1, 1963, who were then 55 years old or older and who elected in writing, and filed with the Comptroller within 90 days after July 1, 1963, their rejection to this section and except those officers or full-time em­ployees, excluding present "high hazard" members, holding office or employed on or before July 1, 1967, who are then 55 years old or older and who elect in writing, filed with the Comptroller within 90 days af­ter July 1, 1967, to reject this section, and such mem­bers who do not so elect to reject this section herein­after shall be referred to as "high hazard" members.

(b) Only those members who are full-time crimi­nal law enforcement officers or agents, as certified by the employing authority, who perform duties accord­ing to rule, order, or established custom as full-time criminal law enforcement officers or agents shall be certified to the division as "high hazard" members, and only such members will be approved by the divi­sion.

(c) The Division of Retirement of the Depart­ment of Administration shall make such rules and regulations as are necessary for the effective adminis­tration of the intent of this section.

(2) All "high hazard" members shall contribute 2.5 percent of each installment of salary, to the State and County Officers and Employees' Retirement Trust Fund, which percentage shall be in addition to the percentage required in s. 122.03, or in s. 122.27 whichever is applicable.

(3) Any "high hazard" member who has been clas­sified within the contemplation of this section as a "high hazard" member for the last 10 years or more of his employment and who is serving as a "high hazard" member, and who has made the additional contribu­tions to the State and County Officers and Employ­ees' Retirement Trust Fund provided in subsection (2) for a period of not less than 5 years or who makes total additional contributions in amount equal to 5 years of additional contribution based on his then current rate of salary, may retire under s. 122.08(1) or s. 122.28, whichever is applicable, if the "high hazard" member has attained normal retirement age which shall be 55 for persons who had become a member prior to July 1, 1963, and age 57 for persons who had or shall become a member on or after July 1, 1963. For the purpose of estimating the annual primary in­surance amount under social security coverage under s. 122.28(3) for such "high hazard" member, the ad­ministrator shall estimate the primary insurance amount as the amount the member shall be entitled to receive at the later of age 62 or his retirement age.

(4) Any "high hazard" member within the con­templation of this section who has been classified as a "high hazard" member for the last 8 years or more of his employment, who is serving as a "high hazard" member, and who has made the additional contribu­tions to the State and County Officers and Employ­ees' Retirement Trust Fund provided in subsection (2) for a period of not less than 5 years or who makes total contributions in amount equal to 5 years of con­tributions based on his then current rate of earnings may retire under s. 122.08(2)(b) or s. 122.28, whichev­er is applicable, if the "high hazard" member has at­tained the age of 50 years or more and is not eligible to retire in accordance with the provisions of subsec­tion (3).

(5) Any "high hazard" member who becomes eli­gible to retire under any other section of this chapter shall not receive a refund of the additional 2.5-per­cent contributions provided for in this section unless he requests in writing to the division a lump-sum re­fund of all his contributions to the State and County Officers and Employees' Retirement Trust Fund in lieu of monthly retirement benefits. However, any "high hazard" member who changes position or is re­classified or otherwise becomes ineligible for classifi­cation as a "high hazard" member for any reason be­fore retiring, or before becoming eligible to retire un­der any other section of this chapter shall lose all benefits under this section and may receive a refund of the additional 2.5-percent contribution without in­terest or leave the additional 2.5-percent contribu­tion in the State and County Officers and Employees' Retirement Trust Fund pending reclassification as a "high hazard" member; provided further, should any member receive a refund and be reinstated as a "high hazard" member, he shall pay into the State and County Officers and Employees' Retirement Trust

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Ch.122 STATE AND COUNTY RETIREMENT SYSTEM F.S. 1981

Fund the full amount refunded plus 3-percent inter­est compounded annually from date of refund until July 1, 1975, and thereafter at the rate of 6.5-percent interest compounded annually to date of repayment. Should such member apply for another refund before such payment is made, the interest on the first re­fund shall be deducted from the second refund, inter­est to be figured from date of first refund through date of second application for refund, at 3-percent in­terest compounded annually until July 1, 1975, and thereafter at the rate of 6.5-percent interest com­pounded annually.

(6)(a) The widow of any "high hazard" member hereafter killed in the line of duty shall receive a monthly pension equal to one-half the monthly sala­ry drawn by the deceased member at the time of death for the rest of her life, unless she remarries, in which case the pension shall terminate at the date of her remarriage.

(b) Any sums of money which would have ac­crued to such widow had she lived until the 18th birthday of such "high hazard" member's youngest child shall accrue, share and share alike, for the use and benefit of such member's child or children under 18 years of age and unmarried during such minority. Such sums, as the same would have accrued to such widow, shall be paid to the legal guardian of the es­tate of such child or children, or either of them, dur­ing such minority to age 18 years.

(c) In determining the amount of pension to be received under this section, the benefits received in the form of workers' compensation and social securi­ty shall be considered, and the total monthly com­pensation shall not exceed one-half of the salary re­ceived by the deceased "high hazard" member at the time of his death. Should such total compensation exceed one-half of the monthly salary drawn by the deceased member at the time of his death, the pen­sion herein provided for shall be reduced by the amount of such excess.

(7) Any "high hazard" member who becomes to­tally disabled as a result of occupation while in the performance of duty shall be retired and shall re­ceive, in addition to the award made to him under the Workers' Compensation Law, an annual pension payable monthly in an amount equal to not less than 45 percent of the annual salary of the member at the time of his disability, and he shall continue to receive the said pension so long as such disability exists.

(8) Any "high hazard" member who becomes par­tially disabled as a result of occupation while in the performance of duty shall be retired and shall re­ceive, in addition to the award made to him under the Workers' Compensation Law, an annual pension payable monthly in an amount equal to not less than 35 percent of the annual salary of the member at the time of his disability, and he shall continue to receive the said pension so long as such disability exists.

(9) The term "total disability" shall be construed to mean any "high hazard" member who has been de­clared permanently totally disabled under the provi­sions of chapter 440 as a result of occupation while in the performance of duty.

(10) The term "partial disability" shall be con-

strued to mean any "high hazard" member who has been declared permanently partially disabled under the provisions of chapter 440 as a result of occupation while in the performance of duty.

(11) No "high hazard" member shall be permitted to receive benefits under this section until examined by a duly qualified physician or surgeon, or board of physicians and surgeons, to be selected by the Gover­nor for that purpose, and found to be disabled in the degree and in the manner specified in this section. At such time as the Department of Administration shall direct, any "high hazard" member receiving disability benefits under this section shall submit to a medical examination to determine if such disability has con­tinued, and the cost of such examination shall be paid from the retirement trust fund herein provided for; and in the event it be declared by said examina­tion that said disability has cleared, such member shall be ordered to return to active duty with the same rank and salary that he had at the time of dis­ability. Any such member who shall fail to return to duty following such order shall forfeit all rights .and claims under this law. Every "high hazard" member retiring under this provision shall be paid so long as his permanent total or partial disability continues, on his own requisition.

History.-s. 6, ch. 63-555; ss. 6, 7, ch. 65-484; ss. 1, 2, ch. 67-193; ss. 2, 3, ch. 67-371; s. 1, ch. 69-347; ss. 31, 35, ch. 69-106; s. 1, ch. 73-326; s. 7, ch. 74-328; s. 1, ch. 77-174; s. 59, ch. 79-40.

122.35 Funding.-(1) Commencing July 1, 1967, for all state agen­

cies and commencing October 1, 1967, for all other agencies with employees who are members under this chapter, former ss. 122.17 and 122.30(4) shall be of no further force and effect and each officer or board paying salaries to members and withholding contri­butions required of members under this chapter for purposes of providing retirement benefits and social security benefits to or on behalf of such members, shall budget, set aside and pay over to account B of the intangible tax trust fund, herein created, match­ing payments in the following specified amounts:

(a) An amount equal to the amount of member contributions paid to the State and County Officers and Employees' Retirement Trust Fund as specified in ss. 122.03 and 122.27 but excluding any additional contributions required of "high hazard" members un­der s. 122.34; and

(b) An amount equal to the amount of member contributions paid to the Social Security Contribu­tion Trust Fund as specified ins. 122.27.

(2) The monthly payments required by subsec­tion (1) shall be payable within 10 days after the first day of each calendar month after July 1, 1967, for all state agencies and October 1, 1967, for all other agen­cies. The state funds required to be paid hereunder shall be provided and paid from the sources as set forth in subsections (3) and (4).

(3) The appropriations provided each state agen­cy, beginning with the 1967-1969 biennium and each biennium thereafter, shall include sufficient amounts to pay the matching contributions for social security and retirement as required by this section and the matching contributions for retirement required of state agencies under s. 238.11(1)(a). No state agency,

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