Judges: D. R. ALEXANDER
Agency: Department of Management Services
Latest Update: Jun. 08, 1983
Summary: Application for state retirement credits as school board attorney denied.
82-3460.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BEN L. BRYAN, JR., )
)
Petitioner, )
)
vs. ) CASE NO. 82-3460
) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing in the above case was held before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on March 18, 1983, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Ben L. Bryan, Jr., Esquire
Post Office Box 3230
Fort Pierce, Florida 33454
For Respondent: Augustus D. Aikens, Jr., Esquire
Cedars Executive Center 2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32303
BACKGROUND
Petitioner, Ben L. Bryan, Jr., a participant in the Florida Retirement System (FRS), was notified by Respondent, Department of Administration, Division of Retirement, on October 4, 1982, that his membership in the FRS was being terminated effective January 1, 1980 on the ground Petitioner was ineligible for membership. Bryan serves as school board attorney for St. Lucie County.
Petitioner requested a formal administrative hearing to contest the action of Respondent pursuant to the provisions of Subsection 120.57(1), Florida Statutes. The matter was referred by Respondent to the Division of Administrative Hearings on December 23, 1982, with a request that a hearing officer be assigned to conduct a hearing. By notice of hearing dated February 10, 1983, the final hearing was scheduled for March 18, 1983, in Tallahassee, Florida.
At the final hearing, Petitioner testified on his own behalf and offered Petitioner's Exhibits 1 and 2; both were received in evidence. Additionally, Respondent offered Respondent's Exhibit 1 which was received in evidence.
There is no transcript of hearing. Proposed findings of fact and conclusions of law filed by Respondent and Petitioner on March 18 and 28, 1983, respectively, have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.
The issue herein is whether Petitioner is entitled to participate as a member of the Florida Retirement System.
Based upon all of the evidence, the following findings of fact have been determined:
FINDINGS OF FACT
Petitioner, Ben L. Bryan, Jr., has been a member of the Florida Bar since 1962 and has continually engaged in the private practice of law in Fort Pierce since 1965. His offices are located at 101 1/2 South Second Street, Fort Pierce, Florida.
In January, 1971, Petitioner was retained by the St. Lucie County School Hoard to represent it in the capacity of school board attorney. He remained in that position until October, 1974. During that period of time he was a member in good standing of the Florida Retirement System (FRS) and made the required contributions into the program. Bryan was credited with 3.83 years of service credit for that period.
Since January 1, 1980, Petitioner has been retained by the St. Lucie County School Board as its attorney under a succession of written agreements which are substantially similar in form. He also re-enrolled as a participant in the FRS and began making the necessary contributions to the plan.
On October 4, 1982, Respondent, Department of Administration, Division of Retirement, advised Petitioner by letter that because he failed to comply with current FRS membership requirements, he was being removed from FRS membership effective January 1, 1980. The letter prompted the instant proceeding.
Under the written agreements of employment, Petitioner is generally responsible for the handling of all legal matters of the school board. He devotes approximately thirty to forty hours per month to school board work while the remainder of his time is spent in his private law practice. A part of the school board work is performed at its administrative offices; however, the majority is done at Petitioner's law office. He is paid from a regular salaries and wage account.
Either the superintendent or the board controls Petitioner's hours by assignment of the work to be done, including requests for advice, research and opinions. The board determines which cases will be settled, defended or appealed. Bryan is required to accept any case or matter assigned, and does not reject assignments. He is furnished the Education Law Reporter and other materials, including stationery and envelopes, by the school board. Additionally, dues are paid to various professional associations on his behalf.
Bryan receives no pay for vacations, holidays or illnesses. He is, however, reimbursed for traveling expenses, and is covered by the school's health and life insurance and workers' compensation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
As a general rule, participation in the FRS is compulsory for all officers and employees of an agency of government, including local school boards. Sections 121.021 and 121.051, Florida Statutes; Rule 22B-1.04, Florida Administrative Code.
An employee is defined as " . . . any person receiving salary payments for work performed in a regularly established position . . . " Subsection 121.021(1), Florida Statutes. A regularly established position is one which will be in existence for a period of four or more consecutive months. Rule 22B- 1.04(5)(b), Florida Administrative Code. However, an exception has been created for temporary positions even though they may exist beyond four consecutive months. Rule 22B-1.04(6), Florida Administrative Code. A temporary position in a local agency, such as a school board, includes all consultants and other professional persons on contract. Rule 22B-1.04(6)(e)6., Florida Administrative Code. This category of personnel is defined within Rule 22B-6.01(12), Florida Administrative Code.
As a basis for removing Petitioner from the FRS, Respondent contends in brief that Petitioner is a professional person within the meaning of Rule 22B-6.01(12), that for retirement purposes a professional person is considered
to be filling a temporary position (Rule 22B-1.04(6)(e)6.), and that an employee filling a temporary position is not eligible for membership in the FRS [Rule
22B-1.04(6)]. It also argues that under the facts and circumstances in the case at bar, petitioner is merely an independent contractor vis a vis an employee of the school board, and as such, cannot qualify for FRS membership.
Petitioner disagrees and asserts his employment status is that of an employee rather than an independent contractor, and that he does not fall within the purview of the cited Division rules. He also relies upon the rationale contained in Re: Frank A Howard, Jr. v. Dept. of Admin., Div. of Retirement, DOAH Case No. 81-417, Final Order entered 12/11/81, which held a school board attorney for Dade County to be an employee of the board and therefore eligible to participate in the retirement system.
The crucial issue in this case is whether Petitioner falls within the definition of a professional person as defined by Rule 22B-6.01(12). If he does, other pertinent rules make clear that Bryan's petition must fail.
The rule in question defines a professional person as follows:
an individual who: agrees to provide certain services; works according to his own methods; is not subject to the control of his employer, except as to the results of his work; and
does not enjoy the fringe benefits offered by the employer. A consultant or other professional person usually is compensated from an other salaries and wage account; does not earn annual or sick leave; and may
frequently do a majority of his work in his own office rather than on the employer's premises.
The evidence herein reveals that Petitioner (a) has agreed by written contract to provide certain legal services, (b) works according to his own methods, (c) is generally not subject to the control of his employer, except as to the results of his work, (d) does not earn annual or sick leave, and (e) frequently does a majority of his work in his own office rather than on the school board's premises. While it is true he enjoys certain fringe benefits (insurance) from his employer, and is paid from a regular salaries account, this in itself is insufficient to remove him from the category of a professional person. Further, the facts herein are distinguishable from the Howard case, supra, where Howard was essentially a full-time school board attorney. Instead, Petitioner's situation is almost identical to that found in Re: Donald W. Hulmes v. DOA, Div. of Retirement, DOAH Case No. 80-2161, Recommended Order dated 6/24/81, which reached the same result regarding a part-time attorney for a junior college.
Accordingly, it is concluded that Petitioner is a "professional person" filling a "temporary position", and is therefore ineligible to participate in the Florida Retirement System.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Ben L. Bryan, Jr., be DENIED.
DONE and RECOMMENDED this 5th day of April, 1983, in Tallahassee, Florida.
DONALD R. ALEXANDER
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1983.
COPIES FURNISHED:
Ben L. Bryan, Jr., Esquire Post Office Box 3230
Fort Pierce, Florida 33454
Augustus D. Aikens, Jr., Esquire Cedars Executive Center
2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32303
Nevin G. Smith, Secretary Department of Administration
435 Carlton Building Tallahassee, Florida 32301
Docket for Case No: 82-003460
Orders for Case No: 82-003460
