STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUVENILE WELFARE BOARD OF )

PINELLAS COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4067

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on October 4, 1989, in St. Petersburg, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Terry A. Smiljanich, Esquire

Post Office Box 1578

St. Petersburg, Florida 33731

For Respondent: Stanley M. Danek, Esquire

Office of General Counsel

440 Carlton Building Tallahassee, Florida 32399-1550

STATEMENT OF THE ISSUE

The issue in this case is whether the Juvenile Welfare Board of Pinellas County (Petitioner) should have treated John Bucci as a mandatory member of the Florida Retirement System from April 1984, through July 1988, and therefore, should be required to submit retroactive adjustments for retirement and social security based upon his earnings during this period.

PRELIMINARY STATEMENT

Prior to commencement of the hearing, the Department of Administration, Division of Retirement (Respondent), moved to amend the style of this matter to show the Juvenile Welfare Board as Petitioner, rather than John Bucci, and without opposition this motion was granted. The Petitioner called three witnesses and the Respondent called two witnesses to testify. Two joint exhibits were received; the Petitioner introduced four exhibits; and the Respondent introduced eight exhibits; however, Exhibit 6 was received, conditioned upon the Respondent copying, and filing said copy within twenty days following the hearing. Since Respondent has not filed a copy of this exhibit, it is not included in the record of this proceeding, and is rejected.

A transcript of the final hearing was not filed, but the parties requested, and were allowed, twenty days following the hearing to file their proposed recommended orders, including proposed findings of fact. A ruling on each timely filed proposed finding of fact is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is an independent taxing district created by Special Act in 1945 to provide funding in Pinellas County for services to children. It timely filed a request for hearing on the Respondent's decision to consider John Bucci a mandatory member of the Florida Retirement System (FRS) from April 1984, through July 1988. The position of the Petitioner is that John Bucci was an independent contractor, and therefore, should not be considered a mandatory member of the FRS.

   
   

2. Bucci worked as a janitor for the Petitioner between April 1984, and July 1988. He opened the building in the morning, deactivated the building alarm, made coffee, cleaned the employee restrooms, emptied waste baskets, vacuumed and dusted. From time to time, he also painted and made minor repairs in the building, and took mail to the post office when directed to do so. While Bucci did not receive daily assignments, his duties were routine and had been worked out with representatives of Petitioner when he was initially employed.

   If there were problems with his cleaning, he would be told to reclean an area, and he was expected to take care of the problem as soon as possible. The Petitioner provided Bucci with all supplies and equipment necessary to do his job.

   
   

3. While he worked with the Petitioner, Bucci did not have a written contract, but rather, he had an annually renewable verbal contract. He was paid on an hourly basis, and submitted a monthly record of hours worked each day, which was reviewed and approved for payment by Petitioner. Bucci received annual increases from the Petitioner, but did not negotiate these increases.

   The Petitioner simply gave him what it considered to be a cost of living increase each year. According to Petitioner, Bucci was not in an established position, and therefore, did not receive fringe benefits.

   
   

4. At the time, Bucci was the only person working with the Petitioner which it considered to be an independent contractor. Subsequent to his leaving, Petitioner bid, and now has a written contract for janitorial services with an agency in Pinellas County that offers employment opportunities to retarded citizens. That agency provides all equipment and supplies necessary for janitorial duties.

   
   

5. After several counseling sessions with Carole Gunnels, Petitioner's operations manager at the time, Bucci was terminated because of continued problems with his work. Thereafter, it was determined by the Division of Unemployment Compensation, Department of Labor and Employment Security, that he qualified for unemployment benefits.

6. The Comptroller's Office of the State of Florida has issued Memorandum No. 7 (1988-89) regarding determinations of a person's status as an independent contractor or employee. In pertinent part, that Memorandum sets forth twenty factors to be considered in determining if sufficient control is present to establish an employee-employer relationship, and states:

   
   

   The Internal Revenue Service has provided guidance

   in making this determination in Revenue Ruling 87-41. It provides generally, that the relationship of employer and employee exists when the person or persons for whom the services are performed have the right to control and direct the individual who performs the services, not only as to the result

   to be accomplished by the work but also as to the details and means by which that result is

   accomplished. That is, an employee is subject to the will and control of the employer not only

   as to what shall be done but as to how it shall be done. In this connection, it is not necessary that the employer actually direct and control the manner in which the services are performed; it

   is sufficient if the employer has the right to do so.

   
   

7. The Respondent has adopted Rule 22B-6.001(15), Florida Administrative Code, which defines the term "independent contractor" as 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 receive the fringe benefits offered by the employer. A consultant or independent contractor usually:

   is compensated from another salaries and wages 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.

   
   

8. In order to determine if Bucci should have been considered to be an employee of the Petitioner, rather than an independent contractor, the Respondent provided Petitioner with a copy of its Employment Relationship Questionnaire, which Petitioner completed on or about April 10, 1989. The information provided by Petitioner on this Questionnaire indicates that Bucci was required to follow regular routines or schedules, the Petitioner could change the methods by which he performed his work or otherwise direct him in the performance of his duties, the work was to be performed by Bucci personally, the Petitioner could discharge him at any time, and he could quit at any time. It was also indicated that Bucci was not filling a regularly established position, but was retained under an oral contract to perform personal services.

   
   

9. Bucci did not work full-time with the Petitioner. Rather, he worked an average of between 4 to 5 hours a day with the Petitioner. On rare occasion during the time he was employed with the Petitioner, he did take other part-time cleaning jobs with other employers. However, he did not have any occupational

   license as a janitorial service, did not advertise as such, had no yellow page listing for janitorial services, and did not have any equipment or supplies necessary to carry out his duties, other than what Petitioner provided him.

   
   

10. The characteristics, terms and conditions of Bucci's employment with the Petitioner from April 1984, through July 1988, support the Respondent's determination that he was an employee, rather than an independent contractor, and that he was, therefore, a mandatory member of the FRS.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes.

    
    

12. It is well established that persons occupying temporary positions, or who are independent contractors, are not eligible for FRS membership. Browning

    v. Department of Administration, Division of Retirement, 471 So.2d 611 (Fla. 1st DCA 1985); Henry v. Department of Administration, Division of Retirement, 431 So.2d 677 (Fla. 1st DCA 1983). It has also been recognized that an employer cannot simply call a person a temporary employee or independent contractor, and have that denomination determine his or her treatment for FRS purposes. Rather, it is the term and condition of a person's employment when viewed in light of the provisions of Chapter 121, Florida Statutes, which determines eligibility for FRS membership. Hillsborough County Hospital Authority v. Department of Administration, Division of Retirement, 495 So.2d 249 (Fla. 2nd DCA 1986).

    
    

13. Although treated as an independent contractor by Petitioner in this case, the evidence clearly establishes that Bucci was, in fact, an employee of the Petitioner from April 1984, through July 1988, rather than an independent contractor. For example, he was not hired through a bid process, the Petitioner had the authority to change his duties and add to them, he was paid on an hourly basis for actual work performed rather than on the basis of a contracted amount for the performance of any particular job, he was provided by Petitioner with the supplies and equipment necessary for him to carry out his janitorial duties, he did not advertise or hold himself out as a janitorial service, and he was determined to be eligible for unemployment compensation benefits. While he was free to contract with other employers to perform janitorial services while employed with Petitioner, an attribute of employment which is indicative of independent contractor status, the vast majority of characteristics and conditions of his employment support the Respondent's determination that Bucci should be considered an employee, and thus, a mandatory member of the FRS, in accordance with Rule 22B-6.001(15), Florida Administrative Code, and Comptroller Memorandum No. 7.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Respondent enter a Final Order concluding that John Bucci was a mandatory member of the FRS, and as such denying Petitioner's request for relief.

DONE AND ENTERED this 8th day of November, 1989 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1989.

APPENDIX

(DOAH CASE NO. 89-4067)

Rulings on the Petitioner's Proposed Findings of Fact:

1. Adopted in Finding of Fact 1.

2. Rejected as purely procedural matters and not a relevant proposed finding of fact.

3-4. Rejected in Findings of Fact 2-5, 8-10.

The Respondent did not timely file Proposed Findings of Fact.

COPIES FURNISHED:

Terry A. Smiljanich, Esquire

P. O. Box 1578

St. Petersburg, FL 33731

Stanley M. Danek, Esquire General Counsel's Office

440 Carlton Building Tallahassee, FL 32399-1550

Aletta L. Shutes, Secretary Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

Augustus Aikens, Jr., Esquire General Counsel

435 Carlton Building Tallahassee, FL 32399-1550

Docket for Case No: 89-004067

Orders for Case No: 89-004067