STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT B. BURNS,

Petitioner,

vs.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT,

Respondent.

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) Case No. 02-3242

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RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held in this case on November 20, 2002, in Jacksonville, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Al Millar, Esquire

4627 Ocean Street

Mayport, Florida 32233

For Respondent: Thomas E. Wright, Esquire

Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to participate in the Florida Retirement System (FRS) from January 1, 2000, through

June 13, 2002, on the basis of his employment with Florida Community College at Jacksonville (FCCJ).

PRELIMINARY STATEMENT

Petitioner requested that the Division of Retirement (Division) determine his eligibility for FRS participation for the period January 1, 2000, through June 13, 2002. The Division issued a letter advising Petitioner that he was not eligible for FRS participation for January 1, 2000, through June 13, 2002.

Petitioner timely requested a disputed-fact hearing and the cause was referred to the Division of Administrative Hearings on or about August 15, 2002.

At hearing, Petitioner presented the oral testimony of Lloyd Gray Watkins and testified in his own behalf. Petitioner had Exhibits AX-1, AX-2, AX-3, and AX-6 admitted in evidence.

Exhibit AX-4 was withdrawn. Exhibit AX-5 was not offered. Respondent presented the oral testimony of Debbie Stewart and Cathy Smith and had Exhibits R-1, R-2, and R-4 admitted in evidence. Exhibit R-3 was withdrawn.

Official recognition was taken of Section 121.021(52) and (53), Florida Statutes (2001), and Rule 60S-1.004(5)(d)3.,

Florida Administrative Code. The parties stipulated that at all times material to this case identical statutory and rule language applied.

No transcript was provided, but each party's timely-filed Proposed Recommended Order has been considered in preparation of

this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Robert Burns, has been employed as an adjunct instructor of FCCJ since March 1989.

2. FCCJ is a member employer under FRS.

   
   

3. Adjunct instructors traditionally have been employed by FCCJ on a class-by-class, semester-by-semester basis, and have no expectation of employment beyond any single semester. Petitioner knew this from his date of first hire.

4. When Petitioner began work with FCCJ, all adjunct instructors were given a contract for each term and each course. This practice continued for all instructors and classes until the year 2000.

5. Despite the semester-to-semester, repetitive contracts, occasionally Petitioner's courses were of a duration longer than one semester, and Petitioner was sometimes evaluated only on an annual basis. These evaluations were for purposes of certifying Petitioner and similarly situated adjunct instructional personnel for further semester contracts.

6. At all times material, Petitioner taught on three campuses and taught college courses in biology and earth

   science; acted as a facilitator in the laboratory; and taught Adult Studies courses.

7. At all times material, sixty percent of Petitioner's time was spent teaching Adult Studies courses.

8. From 1989 until January 1, 2000, Petitioner was provided semester contracts for each of the three foregoing functions: college courses, lab facilitation, and Adult Studies courses. Every contract clearly acknowledged, in pertinent part,

   3. This contract shall at all times be subject to any and all laws, Florida State Board of Education Rules and Florida Community College at Jacksonville Board of Trustees rules and regulations now existing or hereinafter lawfully enacted or promulgated. In furtherance thereof, the Contractor expressly agrees to become aware of and comply with all such applicable regulations, including but not limited to those addressing discrimination/affirmative action and sexual harassment.

   
   

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   1. The Contractor agrees and understands that he/she is not entitled to receive benefits made available by the College to its full-time employees. The Contractor further agrees and understands that his/her services are of a temporary nature, and that the College does not agree to provide the Contractor with any future employment or contract whether temporary, permanent or otherwise. The relationship hereby created between the Contractor and the College shall be deemed to have been voluntarily terminated by the Contractor upon the termination or expiration of this agreement.

   2. The Contractor agrees and understands that the compensation described herein is the entire compensation due to Contractor for performance of services pursuant to this contract. Specifically, Contractor agrees and understands that he/she shall not be entitled to wages or hours similar to those provided to College employees.

   
   

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   9. The Contractor and the College understand and hereby agree that this contract does not and shall not be deemed to create an employment relationship.

   
   

9. From January 1, 2000, through June 2002, Petitioner was not provided individual contracts for his Adult Studies classes, but was provided contracts for his other courses and lab facilitation work.

10. In 2000, FCCJ began implementing a new computer system and, as a result, some adjunct instructors were not given individual contracts for each course. Adult Studies was one program area where time cards, rather than individual contracts, were used.

11. No one at FCCJ ever told Petitioner that he had become a full or part-time employee, as opposed to an adjunct instructor.

12. At various times during the period after January 1, 2000, Petitioner and other adjunct instructors approached Dean of Adult Studies, Lloyd Watkins, and asked him where their contracts were. The Dean inquired of FCCJ's Human Resources

    Department and was told there were too many contracts to do and so they would not be issued. It is not certain that Dean Watkins ever conveyed this information to Petitioner. However, throughout the period at issue, Petitioner used the time cards and understood that his employment was on a class by class, semester by semester basis.

13. The issue of FRS benefits vis-á-vis independent contractor status did not arise until after Petitioner had been terminated.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings pursuant to Section 120.57, Florida Statutes (2002).

15. Herein, the duty to go forward and the burden of proof by a preponderance of the evidence is upon Petitioner. See Section 120.57(1)(j) and (k), Florida Statutes (2000); Florida Department of Transportation v. J.W.C. Company, 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and

    Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977); and Young v. Department of Community Affairs, 625 So. 2d 831 (Fla.

    1993). Petitioner has not produced any evidence that he was employed in any capacity other than that of an adjunct instructor on a class-by-class, semester-by-semester basis.

16. At hearing, Petitioner asserted that there is an FCCJ rule which requires the college to provide its adjunct instructors with written contracts and that FCCJ's failure to abide by this rule entitles him to FRS benefits. However, he has not provided a copy of such a rule.

17. Petitioner's Proposed Findings of Fact and Conclusions of Law submit that Petitioner and the other adjunct instructors who had inquired of Dean Watkins "as to the nature of their status and received no definitive answer, . . . assumed, absent a contract stating otherwise, that they were entitled to all benefits afforded employees." However, this is not what the evidence shows. (See Findings of Fact 12 and 13)

18. Petitioner's proposals advanced the legal theory that "absent an independent contractor agreement, a person who works designated hours at a designated location at the discretion of his employer is deemed to be an employee and entitled to all benefits, including Social Security, Unemployment Compensation, Workers' Compensation, Retirement and all other benefits afforded other employees."

19. Clearly, Social Security is a federal matter, subject to a federal definition of "employee" and the United States Code's standards of eligibility. Likewise, unemployment compensation and workers' compensation benefits are similarly

    governed by State statutes, respectively Chapters 443 and 440, Florida Statutes.

20. FRS eligibility is codified in Chapter 121, Florida Statutes. Section 121.051, Florida Statutes, provides for compulsory participation in FRS for all employees hired after December 1, 1970. Section 121.021(11), Florida Statutes, defines "employee" as:

    1. ny 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.

       
       

21. Pursuant to Section 121.021(52)(b), Florida Statutes, "a regularly established position" is defined as follows:

    (b) In a local agency (district school board, county agency, community college, city, or special district), the term means a regularly established position which will be in existence for a period beyond 6 consecutive months, except as provided by rule.

    
    

22. Section 121.021(52)(b), Florida Statutes, grants clear legislative authority for the Department to establish, by rule, the definition of "regularly established position," for local member agencies.

23. Section 121.021(53)(b), Florida Statutes, defines a "temporary position" as follows:

    (b) In a local agency, the term means an employment position which will exist for less than 6 consecutive months, or other

    employment position as determined by rule of the division, regardless of whether it will exist for 6 consecutive months or longer.

    
    

24. Section 121.021(53)(b), Florida Statutes, grants clear legislative authority for the Department to establish, by rule, the definition of "temporary position" for local member agencies.

25. The Department has established the definition of "temporary position" in Rule 60S-1.004(5)(d)3., Florida Administrative Code, which provides, in relevant part, the following:

    (5) An employee who is filling a temporary position shall not be eligible for membership in the Florida Retirement System.

    . . . A position meeting the definition below shall be a temporary position.

    
    

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    (d) The following types of positions in a local agency are considered temporary positions for retirement purposes. . . .

    
    

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    3. Temporary Instructional Positions (positions which are established with no expectation of continuation beyond one semester or one trimester at a time, to teach in a community college, public school, or vocational institution; effective July 1, 1991, such positions may include paper graders, tutors, notetakers, and lab tutors at community colleges).

26. Pursuant to those applicable statutes and rules, Petitioner is not eligible for FRS benefits for the period claimed.

27. The evidence clearly established that Petitioner was employed as an adjunct instructor on a class-by-class, term-by- term basis, with no expectation of employment beyond any one term.

28. FRS covers thousands of members employed by hundreds of member agencies. The Legislature has placed the administration of the program under the Department and granted it the authority to establish rules for the efficient and uniform administration of the system. The Department has established rules defining who may participate, as is necessary to the uniform administration of such a system. These rules clearly apply to this action, and just because Petitioner continued as an FCCJ employee without a clear independent contractorship contract after 2001, that fact, by itself, does not create FRS eligibility, contrary to the uniform statutes and

rules.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order denying Petitioner's

request to participate in FRS from January 1, 2000, through June 13, 2002.

DONE AND ENTERED this 14th day of January, 2003, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2003.

COPIES FURNISHED:

Al Millar, Esquire 4627 Ocean Street

Mayport, Florida 32233

Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

Erin Sjostrom, Director Division of Retirement

Department of Management Services Cedars Executive Center

2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560

Simone Marstiller, General Counsel Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 02-003242

Orders for Case No: 02-003242