STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BAKER COUNTY DISTRICT SCHOOL ) BOARD and ANASTASIA RUSH, PH.D., )
)
Petitioners, )
)
vs. ) CASE NO. 93-3378
)
DEPARTMENT OF MANAGEMENT ) SERVICES, DIVISION OF RETIREMENT, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in the above-styled case pursuant to notice by Stephen
Dean, assigned Hearing Officer of the Division of Administrative Hearings, on October 5, 1993, in Jacksonville, Florida. Both parties stipulated to filing their proposed findings and briefs on November 30, 1993.
APPEARANCES
For Petitioner: John W. Caven, Jr., Esquire
Claire M. Merrigan, Esquire CAVEN, CLARK, RAY & TUCKER, P.A.
3306 Independent Square
Jacksonville, Florida 32202
For Respondent: Jodi B. Jennings, Esquire
Assistant General Counsel Florida Division of Retirement Cedars Executive Center
2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560
STATEMENT OF THE ISSUES
In this case, the Petitioners challenge the determination by the Respondent that Anastasia Rush, Ph.D. is an employee of the Baker County School Board based upon the Division of Retirement's determination that Dr. Rush is not an independent contractor. The issue is whether Dr. Rush should be a member of the Florida retirement system. This determination which turns upon whether she is an employee of the school district. Which turns upon whether or not she is, and was, an independent contractor providing professional services to the school board pursuant to contract.
PRELIMINARY STATEMENT
The Petitioners filed a petition for formal proceedings pursuant to Section 120.57, Florida Statutes, challenging the determination of the Division of Retirement classifying the Petitioner, Anastasia Rush, Ph.D., as an employee of the Baker County District School Board (School Board or Board). The Division of Retirement notified the Board by a letter dated April 1, 1993, that Dr. Rush was an employee filling a regularly
retroactively enroll Dr. Rush in the Florida retirement system and pay contributions to the system on her behalf. The superintendent of the school system requested the Division of Retirement to reconsider its position, and by letter dated May 19, 1993, the Division refused to alter its recommendation.
The Petitioners were advised of their right to a formal hearing on this matter and filed their petition for formal proceedings on June 4, 1993. The Division referred the case to the Division of Administrative Hearings, and on July 21, 1993, all parties were noticed of the hearing scheduled for October 5, 1993.
The hearing was conducted as noticed in Jacksonville, Florida. At the hearing, Petitioners called Mrs. Wanda Walker, Dr. Anastasia Rush, and Superintendent Timothy Starling. The Respondent called David W. Ragsdale. The Petitioners offered into evidence exhibits A-P, all of which were received, except for the third page of exhibit M. The Respondent offered into evidence exhibits 1-3, all of which were received.
Both parties submitted proposed findings of fact which were read and considered. The Appendix attached to this Recommended Order states which findings were adopted and which were rejected and why.
FINDINGS OF FACT
The Board, in compliance with the statutory mandate requiring special education programs for emotionally-handicapped students, contracted with the Child Guidance Center, Inc., (CGC) to provide assessment and counseling of qualified students. See, Ex. A-B and Tr. 215-217.
The Board obtained additional funding from grants to provide its students with these mandated special educational programs relating to mental health. See, Ex. E, F, G, H, and M.
The Board contracts with neighboring school boards which are unable to afford their own programs and pay the Baker County Board to provide services to severely emotionally disturbed children in their counties as required by the statute.
The Board's contracts with mental health specialists are dependent upon funding for special students from state monies allocated based upon the total number of students and upon grant money. See, Tr. 38 and 215-216.
The Board has not established a permanent position for a health care professional to render clinical mental health services. See, Tr. 72 and 217. The Board has contracted for these professional services to severely emotionally handicapped students, as well as for the professional services of occupational therapists and physical therapists. See, Tr. 79.
CGC, the first provider of services to emotionally-handicapped students, is a corporation whose business is providing mental health care. See, Tr. 29.
The Board contracted annually with CGC beginning in 1982 to provide a specified number of hours of counseling for its qualifying students. See, Tr. 31-33.
The number of hours stated in the contract with CGC varied according to the availability of funding and established a financial liability limit on the contract.
Each contract between the Board and CGC was for the term of the school year and could be terminated by either party upon 30 days notice. See, Ex. B.
The contracts between the Board and CGC provided that the services would be rendered in the Baker County public schools. See, Ex. B.
CGC billed the Board for each hour of counseling provided by its employees. See, Ex. B.
CGC did its billing and accounting on a quarterly basis and arranged with the Board to be paid on a quarterly basis for its convenience. See, Ex. B; Tr. 145-146.
Dr. Rush was an employee of CGC and first began providing mental health services to the students of Baker County in the early 1980's. See, Tr. 142.
Dr. Rush is a licensed psychologist specializing in child psychology. Dr. Rush received a graduate degree in psychiatric social work from the University of Athens, Greece, and received a Ph.D. in clinical psychology from the University of Florida. See, Tr. 140-141. Dr. Rush has worked in the field of mental health for approximately 20 years.
Dr. Rush began her own practice while still working for CGC through Dr. Freeman under the name of Salisbury Counseling Clinic. See, Tr. 168-169 and 183.
In 1990, Dr. Rush no longer wanted to be an employee of CGC and became an independent contractor with CGC. See, Tr. 146-147.
Dr. Rush's private practice grew gradually and prior to 1991, she had resigned her employment with CGC, concentrating on her private practice. See, Tr. 146.
In 1991, the Board cancelled its contract with CGC. See, Tr. 37-38.
Wanda Walker, administrator of the special education programs, approached Dr. Rush and asked her if she would provide the mental health care as an independent contractor, as previously provided by CGC. See, Tr. 37-38.
On August 16, 1991, the Board entered into two contracts with Dr. Rush to provide different types of mental health counseling to its students. See, Ex. A
One contract between Dr. Rush and the Board provided that Dr. Rush would provide mental health services to the Board for at least nine hours per week, from which two hours would be committed to the special needs of the students in the Opportunity Program at Baker County High School. The contract services were for 37 weeks of the 1991-1992 school year. The cost of the
service was $40.00 per hour, and Baker County agreed to pay Dr. Rush an amount not to exceed $14,460.00 for the service. The agreement required Dr. Rush to perform the services at Baker County public school sites, and provided that the mental health services should include psychological evaluations, classroom observations, participation as a member of the crisis intervention team, and consultations with teachers, guidance counselors and other appropriate school personnel. Dr. Rush submitted a statement of hours worked every two weeks, and was paid the contractual rate for each hour of professional services rendered. The contract provided that either party could terminate upon 30 days written notice.
The other contract between the Board and Dr. Rush provided that Dr. Rush would provide mental health services to severely emotionally disturbed students in the Day Treatment Program at Southside Educational Center. This contract provided that Dr. Rush would provide case management, assessments and evaluations, consultation to school personnel, mental health services appropriate to the program, and direct the counseling services provided to Day Treatment Program students. The contract provided that Dr. Rush would provide for 10 hours of professional services per week for 37 weeks at a cost of $40.00 per hour not to exceed $14,550.00. The contract provided that Dr. Rush would submit a statement of hours worked every two weeks, and that the agreement could be terminated by either party upon 30 days written notice.
On June 4, 1992, Dr. Rush entered into an agreement to provide professional services to the Board for the 1992-1993 school year. This contract duplicated the previous contract for nine hours per week of mental health services for 37 weeks in the 1992-1993 school year at a cost of $40.00 per hour not to exceed $14,460.00. The only significant change in this contract was that the contract covered the provision of services by Dr. Rush or her associate, Nancy Davie.
On June 4, 1992, Dr. Rush entered into a contract with the Board to provide mental health services to severely emotionally disturbed students similar to the previous contract for the 1991-1992 school year. The contract for mental health services to severely emotionally disturbed students did not provide for the provision of these services by Nancy Davie.
When the June 1992 contracts were executed, Dr. Rush had incorporated her professional practice; however, she entered into the contracts with the Board in her individual name. The Board was unaware of Dr. Rush's incorporation. Dr. Rush did not believe that there was a difference between contracting in her name or the name of her corporation; however, this contract was subsequently amended to indicate that her corporation was the contracting entity. See, Tr. 152-153, 189 and 190. Dr. Rush contracted with the Board in the name of her corporation, Protepon Counseling Center, in 1993.
Dr. Rush maintained two offices, one in Jacksonville and one in Macclenny, where she held herself out to the public as a individual providing psychological counseling and where she conducted her professional business.
Generally, Dr. Rush and her associates provided their services at the schools within the district; however, Dr. Rush maintained a professional office in Macclenny, Florida, and met with students and their parents at her professional office as necessary. See, Tr. 71. Both Dr. Rush and CGC provided services at the various schools within the district to alleviate the need to transport children and disrupt their schedules.
Dr. Rush and her associates used the offices of guidance counsellors when at the various schools. See, Tr. 14 and 85.
During the time that Dr. Rush has provided mental health services to the Board, Dr. Rush has provided her own tools for counseling and assessing students.
She provides all of her own supplies. See, Tr. 88 and 297-298.
Dr. Rush is not reimbursed for the use of her supplies or standardized tests. See, Tr. 211
Dr. Rush provides mental health counseling to private individuals and agencies, to include St. Johns River Hospital, the Center for Life Enrichment, Capp Care, Flamedco, Inc., and the Florida Medical Association Alternative Insurance Program. See, Tr. 160-165.
Dr. Rush provides a profit sharing plan to her associates and maintains workers compensation insurance for her employees. See, Tr. 174 and 208.
The contracts with the Board make up only a fraction of Dr. Rush's gross income from her professional practice. See, Ex. J(2); Tr. 169-170.
Dr. Rush maintains her own retirement fund and has done so since she left CGC in 1991. See, Ex. J(3); Tr. 172-173.
Neither the Board or Dr. Rush consider their relationship to be an employment relationship. See, Tr. 149 and 217. It was never the intent of Dr. Rush to be an employee of the Board or the Board's intent for Dr. Rush to be its employee. See, Tr. 149 and 181. Both Dr. Rush and the Board anticipated the continuation of the independent contractor relationship.
The Board paid Dr. Rush for the services rendered by her and her associates from the special fund and not from a salary or payroll account. See, Ex. I.
Every two weeks, Dr. Rush submitted statements of professional services rendered by her or her associates and charged the Board per hour for these services. See, Tr. 180-182.
Dr. Rush was paid for each hour of service which she or her associates provided, and was not paid a salary or reimbursed or compensated for travel costs or supplies. See, Ex. I; Tr. 297
The statements do not indicate whether Dr. Rush or one of her associates provided the service to the Board.
The Board never paid any of Dr. Rush's associates. See, Tr. 43-44,
106 and 107. Dr. Rush's associates have always been paid by Dr. Rush. See, Tr. 151-152.
The Board never deducted withholding taxes from its payments to Dr. Rush. See, Ex. I.
Dr. Rush paid her own social security tax. See, Tr. 207.
Dr. Rush was paid by the Board as she is paid by all of her clients at the agreed-upon hourly rate for her professional counseling services. See, Ex. I; Tr. 182.
In making its determination, the Division of Retirement relied upon the answers provided by Dr. Rush and Wanda Walker to a questionnaire sent out by the Division of Retirement. See, Ex. O. Both Dr. Rush and Ms. Walker answered the questionnaire without help from legal counsel and without understanding its purpose or legal implications. See, Tr. 77-79, 82, and 176.
Dr. Rush provided an annual orientation to new personnel and students; however, she did not take any training program required by the Board during the period of these contracts.
The answers provided by Dr. Rush and Ms. Walker were ambiguous regarding the fact that the annual orientation in which Dr. Rush participated was provided by Dr. Rush to Board employees. See, Ex. O; Tr. 70, 88-89, and 178-179.
Using the school calendar, Dr. Rush prepared a schedule calendar indicating the dates, times, and school locations at which she or her associates would provide professional services under the contract with the Board. See, Tr.
178. See, Tr. 45-48, and Ex. D. Pursuant to their contract, Dr. Rush provided professional services for the Board at the times and dates when students were attending school. See, Ex. C. Dr. Rush set her own schedule within the confines of the school day and the school year.
The purpose of the calendar schedule was to alert teachers as to Dr. Rush's availability at particular schools. See, Tr. 85. Dr. Rush and her associates did not check in with a supervisor at the various schools. Dr. Rush called Ms. Walker, who notified the appropriate school when a new counsellor would be going to that school. See, Tr. 121-122.
This practice was designed for security reasons to let the school know for security reasons that a new individual would be providing services.
Dr. Rush was available if there was an emergency. When paged, Dr. Rush called the school and determined from the facts if it was necessary for her or one of her associates to respond. See, Tr. 131 and 297.
Dr. Rush was not subject to being summoned by Board employees, but exercised her professional judgment about the by of response which was necessary. See, Tr. 131 and 297.
Dr. Rush and her associates evaluated students and recorded the results of their testing and observations. They participated as part of the multidisciplinary team required by law to assess special education students and prepare their educational programs. In this regard, the reports of Dr. Rush and her associates were expressions of their professional expert opinion. See, Tr. 66.
It was the experience and expertise of Dr. Rush and her associates which the Board sought in contracting with Dr. Rush. The Board did not direct Dr. Rush's counseling of students. See, Tr. 81-87. Dr. Rush and her associates conducted their counseling without any control from the Board. See, Tr. 83-84 and 227.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
It is conceded by all of the parties that employees of the Board are covered. The issue is whether Dr. Rush is an independent contractor or an employee.
Rule 60S-6.001(33), Florida Administrative Code, defines independent contractor as "an individual who is not subject to the control and direction of the employer for whom work is being performed, with respect not only to what shall be done but to how it shall be done...". A portion of the rule quoted above states the primary criteria used by the courts in cases going back to Cantor v. Cochran, 184 So.2d 173 (Fla. 1966), in determining whether an individual is an independent contractor.
The Florida Supreme Court in Cantor, supra., cited the criteria constituting the appropriate test for determining an independent contractor as found in the Restatement (S2d) of Agency, Section 220 (1958), which included:
Extent of control
Engaged in a distinct occupation
Kind of occupation
Skill required in occupation
Whether an employer furnishes instrumentalities, tools, and work place
Length of time
Method of payment, i.e., by time or job
Whether its part of the employer's regular business
Intent of the parties
Whether principal is in a business
The Department's Rule, 60S-6.001(33), Florida Administrative Code, cited above, lists a number of criteria which address the same basic issues addressed by the court in Cantor, supra.
Applying the criteria used in the Division's rule and by the court in Cantor to the facts presented as follows:
Control--The most credible evidence is that Dr. Rush set her own hours and schedule and provided the Board with the times that she would be available to provide services to the various schools.
Set hours of work--To the extent that the contracts specified a set number of hours it could be worked, these established a limitation on the financial obligation on the part of the Board. There was no evidence that Dr. Rush did not have the greatest amount of flexibility in determining which hours she would provide to which schools and when. Dr. Rush had two contracts each year initially, each of which provided a minimum number of hours per week, which Dr. Rush would provide to the Board. The very existence of two contracts mitigates against the concept of the employee/employer relationship. It indicates that Dr. Rush was being employed to perform two separate jobs on an annual contract.
Distinct occupation--Clinical psychology is a health-related profession which is separate and apart from teaching or educational administration. Psychology, as practiced by Dr. Rush, is separated from educational testing and counseling. The services provided by Dr. Rush related to professional intervention to define a problem and assist a student with it. While mandated as part of the services provided under the Federal laws related to special education, the services provided by Dr. Rush are at best an adjunct to education.
Skill required--The skill and experience required to practice clinical psychology is beyond that required of psychologists in educational testing and counseling, and is equal to that required of a medical doctor or attorney.
Whether the employer furnishes tools, supplies, and a place to work-- The evidence revealed that Dr. Rush utilized the offices of the school guidance counselors when providing services at the schools; however, Dr. Rush did this to accommodate the Board in avoiding the necessity to transport children to one of the professional offices in Macclenny and in Jacksonville, Florida, which Dr. Rush maintained. In appropriate cases, Dr. Rush saw students and their parents in her offices in conjunction with her work for the Board. Dr. Rush provided her own supplies, testing materials, and general office equipment.
Hold oneself out to the public as a professional--Dr. Rush held herself out to the public as providing clinical psychological services and she provided services to the general public at her professional offices located in Macclenny and Jacksonville, Florida, at all times during the period covered by her contracts with the Board.
Length of time--Dr. Rush provided professional services to the Board pursuant to contract. Each of these contracts ran for less than a year and were funded in whole or in part by grant monies. Such monies are deemed "soft" money because they are not subject to reappropriation annually. Therefore, it was not realistic for the Board to establish a regular position. If the funding had not been renewed, the Board would have had to discharge the incumbent.
Method and manner of payment--Dr. Rush provided to the Board the number of hours she and her associates had worked in the previous two weeks, and the Board paid for those services at the contractual rate. Note that the parties had two contracts for the provision of services of differing types at the same time, and that later contracts permitted the services to be rendered by persons other than Dr. Rush. This is strong evidence that Dr. Rush was not an employee whose time is controlled and directed by the employer.
Is the activity part of the employer's business--While Federal law mandates the provision of psychological services to special education students, the activities of Dr. Rush were collateral to the principal business of the Board which is student education.
Intent of the parties--It was clearly the intent of the parties not to establish an employee/employer relationship.
Whether the principal is in business--While not classically a business, the Board is engaged in providing services to its constituency.
Training--Dr. Rush has a doctorate in the field of clinical psychology and has many years of clinical experience. The Board employed Dr. Rush for her training, skill, and experience in providing psychological assessment and
intervention. Dr. Rush holds herself out to the general public as a provider of this type of professional services. To this end, she maintains professional offices in Macclenny and Jacksonville, Florida.
Exposure to economic loss - It is erroneous to say that Dr. Rush could not suffer traditional loss in providing the services which she provided to the Board pursuant to contract. She did, in fact, invest in materials, equipment, and office rental. Had Dr. Rush's expenses exceeded her receipts from work done for the Board and for private clients, she would have suffered a loss.
Reporting--Dr. Rush would have been required to provide professional assessments on the students with whom she was working pursuant to her contracts with the Board on a periodic basis for the purposes of evaluating the educational plan developed by the Board using a multi-discipline approach. Although the record is unclear regarding whether Dr. Rush was required to follow a specific format rendering these reports, clearly, the Board could not dictate to Dr. Rush the nature of her professional assessments regarding the students who she was seeing. In summary, the Board could not dictate how Dr. Rush treated the students.
Order of sequence of services--While the Board may have developed procedures for its staff in identifying students for referral to Dr. Rush, the process by which Dr. Rush assessed the students to determine their eligibility for participation and to assess any of their psychological needs was in no way dictated nor mandated by the Board.
Right to terminate the contract--Under the contract between the parties, either side can terminate the contract upon thirty (30) days notice. There was no provision for termination for cause, as is found in employment contracts.
The facts taken as a totality do not establish that Dr. Rush was an employee. She was a professional clinical psychologist providing professional services pursuant to contract. Section 121.021(22), Florida Statutes, defining compensation provides that under no circumstances shall compensation include fees paid professional persons for special or particular services. The evidence provided in this case indicates that the nature and extent of services provided by Dr. Rush, pursuant to contract with the Board, constituted professional services and are specifically excluded by law from inclusion as compensation.
Having considered the foregoing Findings of Fact and Conclusions of Law, it
is
RECOMMENDED that Dr. Rush be treated as an independent contractor and
denied participation in the Florida Retirement System.
DONE AND ENTERED this 12th day of January, 1994, in Tallahassee, Florida.
STEPHEN F. DEAN
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1994.
APPENDIX TO RECOMMENDED ORDER CASE NO. 93-3378
Both parties submitted proposed findings which were read and considered. Contrary to the Division's rules, Baker County did not number its findings and did not limit them to short statements of fact. Therefore, although most of its findings were adopted in the order originally presented, it is virtually impossible to identify which of the findings were adopted. In order to assist those attempting to determine which facts were adopted, and which were rejected and why, the numbers listed under the Recommended Order column below reference the paragraphs in the Recommended Order which contain the findings suggested by the Division, or the alternative findings suggested by Baker County which the Hearing Officer determined were based upon the more credible evidence. It is readily apparent when the reason is stated for rejecting the proposed findings.
Retirement's Findings Recommended Order Paragraphs 1-3 1,2,3,6,7,13
Paragraph 4 14
Paragraph 5,6 19
Paragraph 7 Rejected as contrary to more detailed descriptions of the contracts at issue.
Paragraph 8,9 20,21,22
Paragraph 10 Irrelevant.
Paragraph 11 As indicated in the Conclusions, there is no issue concerning the
fact that employees of school boards are qualified for membership in the retirement system. The issue is whether Dr. Rush was an employee.
Paragraph 12,13,14 23,24,25,49,50
Paragraph 15 26,32,34
Paragraph 16 The differences in the terms of the board's contracts with CGC and Dr. Rush are not relevant.
Paragraph 17 1,53,54
Paragraph 18 48,49
Paragraph 19 37-44
Paragraph 20-23 2-4,37-44. The manner in which some non-instructional staff are paid is irrelevant.
Paragraph 24 26,28-31
Paragraph 25 45-47
Paragraph 26 51,52
Paragraph 27-28 53
paragraph 29 26,28
Paragraph 30,31 25
Paragraph 32,33 Irrelevant argument.
COPIES FURNISHED:
A.J. McMullian, III, Director Division of Retirement
Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, FL 32399-1560
Sylvan Strickland, General Counsel Department of Management Services Knight Building, Suite 309
2737 Centerview Drive
Tallahassee, FL 32399-0950
John W. Caven, Jr., Esquire Claire M. Merrigan, Esquire CAVEN, CLARK, RAY & TUCKER, P.A.
3306 Independent Square
Jacksonville, FL 32202
Jodi B. Jennings, Esquire Assistant General Counsel Florida Division of Retirement Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, FL 32399-1560
William H. Linder, Secretary Department of Management Services
309 Knight Building 2737 Centerview Drive
Tallahassee, FL 32399-0950
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF MANAGEMENT SERVICES
DIVISION OF RETIREMENT
BAKER COUNTY SCHOOL BOARD and ANASTASIA RUSH,
Petitioners,
DOR CASE NO. DR 93-12
vs. DOAH CASE NO. 93-3378
DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,
Respondent.
/
FINAL ORDER
This matter was heard in Jacksonville, Florida, on October 5, 1993, before Stephen F. Dean, a duly designated Hearing Officer of the Division of Administrative Hearings. Both parties filed proposed findings of fact and conclusions of law. Appearances for the parties at the hearing were as follows:
APPEARANCES
For Petitioners: John Caven, Esquire
Caven, Clark, Ray & Tucker, P.A. 3306 Independent Square
Jacksonville, Florida 32202
For Respondent: Jodi B. Jennings, Esquire
Division of Retirement
Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
A Recommended Order was issued on January 12, 1994. A copy of the Recommended Order is attached hereto, incorporated by reference and made a part of this Final Order as an exhibit. Neither party filed exceptions to the Recommended Order.
After consideration of the all matters of record in this cause, the transcript, the Recommended Order and the exhibits introduced at the hearing, the Division of Retirement now enters its Final Order.
FINDINGS OF FACT
The Division hereby adopts and incorporates the findings of fact set forth in the Recommended Order.
CONCLUSIONS OF LAW
The Division of Retirement has jurisdiction of the parties and the subject matter of this proceeding. Section 120.57(1), Fla. Stat. (1993).
Section 120.57(1)(b)(10), Fla. Stat. (1993) provides, in pertinent part:
The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order. . . .
Chapter 121 of the Florida Statutes established the Florida Retirement System in 1970. The Division of Retirement, pursuant to section 121.031(1), Fla. Stat. (1993), is authorized to implement rules for the efficient administration of the system.
The rules of the Division of Retirement contain a definition of independent contractor. "Independent contractor" is defined at Rule 60S- 6.001(33), Fla. Admin. Code, and provides:
INDEPENDENT CONTRACTOR -- Means an
individual who is not subject to the control and direction of the employer for whom the work is being performed, with respect not only to what shall be done but to how it shall be done. If the employer has the right to exert such control, an employee-employer relationship exists and the person is an employee and not an independent contractor. The Division has adopted the following factors as guidelines to aid in determining whether an individual is an employee or an independent contractor.
The weight given each factor is not always the same and varies depending on the particular situation.
The twenty criteria to be considered are:
Instructions
Training
Integration
Services rendered personally
Hiring assistants
Continuing relationship
Set hours of work
Full-time or part-time work
Work done on premises
Order or sequence of services
Reports
Payments
Expenses
Tools and materials
Investment
Profit or loss
Works for more than one person or firm
Offers services to general public
Right to terminate employment
Right to quit
The determination of whether an individual is an independent contractor depends not upon the statements of the parties but upon all the circumstances of their dealings with each other, Cantor v. Cochran, 184 So. 2d 173 (Fla. 1966), with the most important element being the right of the employer to maintain control over the individual. Messer vs. Dept. of Labor and Employment, 500 So. 2d 220, 221 (Fla. 5th DCA 1988).
Applying the foregoing criteria to the present case, the following conclusions are reached:
Instructions -- Dr. Rush was given instructions regarding the number of hours she could work and the locations where she was to provide services by contract. She was instructed concerning her work schedule to the extent that her schedule was dependent upon the school schedule and was expected to respond to emergencies at the various school sites. However, Dr. Rush maintained the discretion to provide services at her offices when appropriate. Dr. Rush was not instructed as to how to counsel students; such instruction, however, would not be expected to be given because Dr. Rush is a professional, and was hired for her particular expertise in counseling students. In some areas Dr. Rush received instructions, while in others she did not. On its own, this factor is not conclusive.
Training -- Dr. Rush was not trained by the Baker County School Board (BCSB). At the time she contracted with the BCSB, she was a psychologist with a number of years of experience in her field. This factor therefore has little weight in the analysis of this case.
Integration -- The services provided by Dr. Rush were mandated by statute and were integral to the success of the BCSB. Under this factor, she was an employee.
Services rendered personally -- All services were not provided personally. Dr. Rush initially performed services personally, then later utilized the services of an associate in addition to providing services personally. Under this factor, she was an independent contractor.
Hiring assistants -- Initially, Dr. Rush had no assistants; later, she utilized the services of associates. Dr. Rush's associates were hired and paid by Dr. Rush. Under this factor, she was an independent contractor.
Continuing relationship -- Dr. Rush provided services for the BCSB continuously from 1982 through 1993. Between 1982 and 1990, she provided services through Child Guidance Center's contracts with the BCSB. The length of the relationship indicates an employer-employee relationship.
Set hours of work -- The agreements specified the numbers of hours which could be worked. Dr. Rush scheduled working hours within the confines of the school calendar. However, she performed additional services after school hours at her offices. Her hours were not dictated by the BCSB. This factor is more indicative of independent contractor status.
Full-time or part-time work -- Dr. Rush did not provide services to the BCSB on a full-time basis. However, part-time employees are compulsory members of the FRS. This factor has little weight in the analysis of this case.
Work done on premises -- In addition to providing services at the school sites, Dr. Rush also provided services at her offices in Macclenny and Jacksonville as necessary. This factor weighs in favor of independent contractor status.
Order or sequence of services -- The contracts specified which services Dr. Rush was to provide. The BCSB developed procedures for identifying students for referral to Dr. Rush. Once the students were referred to Dr. Rush, she determined the counseling services to be provided. Both parties participated in some aspect of this factor. On its own, this factor is not conclusive.
Reports -- Dr. Rush was required to perform professional assessments of the students on a periodic basis pursuant to the contracts. The reporting requirement indicates an employer employee relationship.
Payments -- Dr. Rush was paid hourly, biweekly and personally rather than by the job or by commission. She was paid out of an other than salaries account. The method of payment indicates an employer-employee relationship.
Expenses -- Dr. Rush paid her own business expenses. This is characteristic of an independent contractor.
Tools and materials -- Dr. Rush provided the testing materials and supplies she used in connection with the services she was providing. This is characteristic of an independent contractor.
Investment -- Dr. Rush provided some services at her offices in Macclenny and Jacksonville. To the extent that she provided services at her own offices, she had an investment. Investment is characteristic of an independent contractor.
Profit or loss -- Dr. Rush was in a position to suffer a loss or realize a profit to the extent that she provided services at her own offices. According to this factor, she was an independent contractor.
Works for more than one person or firm -- Dr. Rush contracted with several mental health providers in addition to the BCSB during the period at issue in this case. This indicates independent contractor status.
Offers services to the general public -- Dr. Rush made her services available to the general public at her offices in Macclenny and Jacksonville. According to this factor, she was an independent contractor.
Right to terminate employment -- The contracts provided that either party could terminate the contract upon thirty days notice. The contracts contained no provision for liability upon termination. According to this factor, she was an employee.
Right to quit -- As stated above in paragraph s., Dr. Rush could quit upon thirty days notice with no provision for liability. According to this factor, she was an employee.
In this particular case, Dr. Rush was not subject to the control of the BCSB with regard to many aspects of her services. She had her own offices; contracted with numerous mental health service providers; hired and paid her own assistants who performed services at her direction; furnished her own materials and paid her own expenses; and maintained flexibility with respect to where and when she would perform some services.
Rule 60S-6.001(33) states that the enumerated factors are to be used as guidelines, and the weight given each factor varies depending on the particular situation. Based on a review of the factors in this particular case, Dr. Rush was, as a matter of law, an independent contractor with respect to the BCSB.
THEREFORE, based upon the foregoing, it is
ORDERED AND DIRECTED that Dr. Anastasia Rush was an independent contractor with respect to the Baker County School Board between August 1991 and August 1993 and was not a compulsory member of the Florida Retirement System for that period of time.
DONE AND ORDERED this 11th day of April, 1994, at Tallahassee, Leon County, Florida.
J. MCMULLIAN III
State Retirement Director Division of Retirement
FILED WITH THE CLERK OF THE DIVSION OF RETIREMENT THIS 12th DAY OF APRIL, 1994
Copies furnished to:
John Caven, Esquire
Caven, Clark, Ray & Tucker, P.A. 3306 Independent Square
Jacksonville, Florida 32202
Stephen F. Dean Hearing Officer
Division of Administrative Hearings 1230 DeSoto Building
Tallahassee, Florida 32399
Clerk
Division of Administrative Hearings 1230 DeSoto Building
Tallahassee, Florida 32399
Jodi B. Jennings
Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C
Tallahassee, Florida 32399-1560
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68 OF THE FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF RETIREMENT, AND A SECOND COPY, ACCOMPANIED BY THE FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
| Issue Date | Proceedings |
|---|---|
| Apr. 13, 1994 | Final Order filed. |
| Jan. 12, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held October 12, 1993. |
| Nov. 30, 1993 | Petitioners' Proposed Findings of Fact, Conclusions of Law and Recommended Order filed. |
| Nov. 30, 1993 | Respondent's Proposed Findings of Fact and Conclusions of Law filed. |
| Nov. 19, 1993 | Order sent out. (Re: Extension of Filing Time) |
| Nov. 12, 1993 | (joint) Stipulated Motion to Establish Date For Filing Proposed Findings of Fact and Conclusions of Law filed. |
| Nov. 10, 1993 | Transcript filed. |
| Oct. 05, 1993 | CASE STATUS: Hearing Held. |
| Sep. 24, 1993 | Notice of Taking Deposition filed. |
| Sep. 08, 1993 | (Respondent) Notice of Compliance With Request for Production filed. |
| Sep. 08, 1993 | (Respondent) Response to Interrogatories filed. |
| Sep. 07, 1993 | (Respondent) Notice of Substitution of Counsel; Notice of Taking Deposition filed. |
| Aug. 05, 1993 | Answers to Respondent`s First Interrogatories to Petitioners; Petitioners` Response to Respondent`s First Request for Production of Documents to Petitioners; Petitioners` First Interrogatories to Respondent; Petitioners` First Request for Production of Do |
| Jul. 21, 1993 | Notice of Hearing and Order sent out. (hearing set for 10/5/93; 10:00am; Jax) |
| Jul. 14, 1993 | (joint) Reply to Initial Order Concerning Related Cases, Estimated Length of Time for Hearing, Location and Date of Hearing; Reply to Initial Order Concerning Related Cases, Estimated Length of Time for hearing Location and Date of Hearing filed. |
| Jun. 29, 1993 | Respondent's First Request for Production of Documents to Petitioner;Notice of Service of Respondent's Interrogatories to Petitioners filed. |
| Jun. 28, 1993 | Initial Order issued. |
| Jun. 22, 1993 | Notice of Election to Request Assignment of Hearing Officer; Petition for Formal Proceeding filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 11, 1994 | Agency Final Order | |
| Jan. 12, 1994 | Recommended Order | Phd clinical psychologist providing professional services on contract held to be independent contractor & ineligible for retirement membership. |
