Opinion
No. 1D01-729.
April 16, 2002.
Appeal from the State Retirement Commission.
Stanley M. Danek, Tallahassee, for Appellant.
Robert B. Button, Senior Attorney, Division of Retirement, Tallahassee, for Appellee.
Dorothy Jackson appeals from an order of the State Retirement Commission dismissing her reapplication for permanent and total disability retirement benefits for the reason that it was barred by the doctrine of res judicata, and denying her motion for reconsideration. She raises two issues: (1) that the Commission erred in applying res judicata to her reapplication, and (2) that the order was improperly entered by the Commission chair's designee, rather than the full Commission. We reverse and remand on the second issue, and thus do not reach the first.
After the Division of Retirement denied Jackson's second application for benefits, she sought a formal hearing before the Commission pursuant to section 120.57(1), Florida Statutes (2001). The Division moved to dismiss the case, arguing, among other things, that res judicata barred the proceeding. It appears from the record that the vice-chair of the Commission, acting on behalf of the chair, orally granted the motion, and when Jackson filed a motion for reconsideration, the vice-chair entered a written order articulating the reasons for dismissal and denying the motion for reconsideration. This was error, because a panel of the Commission, rather than the vice-chair alone, should have determined the Division's motions.
Section 121.23(2), Florida Statutes (2001), authorizes the Commission to hear appeals "on the merits of any written adverse decision of the administrator" of the retirement system. Section 121.24(1), Florida Statutes (2001), provides:
(a) For purposes of hearing appeals under s. 121.23, the commission may meet in panels consisting of not fewer than three members. For all other purposes, a quorum shall consist of four members. The concurring vote of a majority of the members present shall be required to reach a decision, issue orders, and conduct the business of the commission.
(b) The commission shall elect a chair and such other officers as it deems necessary. The chair or the chair's designee 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 decisions of the chair or the chair's designee, unless he or she is overruled by a majority of members present.
(Emphasis added.)
Because the proceeding below was Jackson's appeal of the administrator's adverse decision, a panel of the Commission should have decided the Division's motion to dismiss. The Division contends that subparagraph (b) authorized the vice-chair, as the chair's designee, to act on the motion. We disagree. The plain language of subparagraph (a) permits decisions and orders disposing of appeals to be issued only by panels of not fewer than three members, whereas subparagraph (b) is addressed to the efficient conduct of meetings and hearings.
The order is REVERSED and REMANDED with directions to the Commission to have a three-member panel decide the Division's motion to dismiss and related motions. This moots Jackson's challenge to the vice-chair's denial of her motion for reconsideration.
POLSTON, J., concurs.
BENTON, J., concurs in judgment with opinion.
The appellant complains both that her administrative appeal of a successive application for regular disability retirement benefits was dismissed by the Vice-chair of the State Retirement Commission and that the Vice-Chair denied an ensuing motion for reconsideration.
We recently rejected the contention that "the Chair of the State Retirement Commission lack[s] authority to act on [a] motion for reconsideration without reconvening the entire Commission." Miller v. State, Div. of Ret., 796 So.2d 644, 646 (Fla. 1st DCA 2001). Nor does a three-member panel have to be reconvened.
But dismissing the administrative appeal from denial of the successive application in the first instance was a different matter. The Vice-chair disposed of the case when he granted the motion to dismiss. By statute, this is beyond the presiding officer's prerogative, absent the concurring vote of another panel member. § 121.24(1)(a), Fla. Stat. (2001).