STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD W. HULMES, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2181

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

PURSUANT TO NOTICE, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a hearing in this case on March 26, 1981, in Tallahassee, Florida. The parties requested and were accorded until June 1, 1981, to file proposed findings of fact and conclusions of law. These were filed on June 1, and have been considered: these not adopted are either irrelevant, or not supported by the weight of credible evidence. The parties waived the time constraint for the filing of this Recommended Order.

APPEARANCES

For Petitioner: M. Terry McNab, Esquire

Post Office Box 12 Tallahassee, Florida 32302

For Respondent: Augustus D. Aikens, Jr., Esquire

Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street

Tallahassee, Florida 32303

The Petitioner requested an Administrative Hearing to determine his eligibility for reinstatement as a member of the State and County Officers and Employees Retirement System, and membership in the Florida Retirement System. Three witnesses were presented in support of the petition, including a former director of the State and County Officers and Employees Retirement System, the Comptroller of the Broward Community College, and the Petitioner. The Chief of the Bureau of Enrollment of the Division of Retirement testified on behalf of the Respondent. Seven exhibits were offered by the parties, all of which were received in evidence.

FINDINGS OF FACT

1. Since 1968 the Petitioner, Donald W. Hulmes has been attorney for the Broward Community College. Previously he was attorney for the Broward County Board of Public Instruction (School Board), having held this position since

   1955. During the Petitioner's employment with the School Board he was a member of the State and County Officers and Employees Retirement System (SCOERS). In 1968 the college was separated from the School Board by the legislature, and became autonomous under its own Board of Trustees, which appointed the Petitioner as its college attorney. For four more years in this capacity, until 1972, the Petitioner continued to be enrolled as a member of SCOERS.

   
   

2. The college's finances were examined on an annual basis by legislative auditors. As a result of these audits performed for fiscal years 1969-1970 and 1971-1972, the auditor commented adversely on the college's practice of processing the Petitioner's annual retainer as salary payments with applicable payroll deductions taken. When the Petitioner was employed by the college there was no change in his contract status relative to duties and responsibilities, and the college had continued to make retirement deductions for him the same as was done during his School Board employment.

   
   

3. As a result of the adverse comments from the legislative auditor the college fiscal personnel considered whether the Petitioner's position was as an employee, or was contracted services. If the position of college attorney was to be on an employee basis, time reports would have to be maintained and other policies affecting employees would have to be adhered to. If the position was contracted services, compensation would have to be in a form other than salary payments. Based on these considerations, the college provided the Petitioner with a contract for one year with a stipulated retainer, and in 1972 the Petitioner was disenrolled from SCOERS. Alternatively, the college could have determined that the Petitioner's position was as an employee.

   
   

4. Although the Petitioner was not formally notified of the action taken by the college, he and the college comptroller discussed the matter, and the Petitioner assumed he was going to have some problems. Subsequently, he noticed that his checks were a different color, and had different slots and blocks, but his secretary handled the deposit of the checks into his account, so little attention was paid to these changes, including the absence of a deduction for retirement.

   
   

5. Sometime thereafter the Petitioner began to make inquiries of the college fiscal personnel relative to reentering the retirement system. However, no formal or written inquiry was made until 1978 when the Petitioner had been out of SCOERS for six years.

   
   

6. During these years, and until 1979, the Petitioner's compensation arrangement with the college was by annual retainer for specified services, plus an hourly rate for special services. He has been and remains the senior partner of a law firm consisting of himself and four other attorneys. He is free to provide legal advice to and represent members of the public. This law firm maintains two offices, one in Hollywood and one in Fort Lauderdale, and the Petitioner has a private listing in the telephone directory. He has a $1,000 per month draw with his law firm, although he does not pay into the firm or contribute to its income substantially.

   
   

7. When the Petitioner applied to get back into the retirement system, the college was given an Employment Relationship Questionnaire to complete, for the purpose of determining the facts relative to his eligibility. Among other information submitted by the college, it indicated that the Petitioner was engaged by the college on a part-time basis. In addition, in June of 1978, the president of the college analyzed the nature of the services rendered by the Petitioner as college attorney, and estimated that on a monthly basis he spent

   approximately 30 hours on routine and special issue work. Further, the Petitioner provides his own office space, library, secretarial assistance, and in his absence his law partner was available to advise the college, if necessary. Faculty members at the college have a 30 hour work week, and administrative staff personnel and other classified employees are required to work 37 1/2 hours per week.

   
   

8. The Petitioner's relationship with the college does not require him to maintain any special working hours as other college employees are required to do. He is not subject to a pre-employment physical examination. He does not receive annual leave or sick leave. No written performance evaluations are prepared for the Petitioner, as is done for other college employees except the president. Accordingly, the Petitioner has not been a full-time employee of Broward Community College.

   
   

9. In 1979 the college began making deductions from the Petitioner's payments as contributions to the Florida Retirement System, and these contributions were reported. As a result the Division of Retirement advised the Petitioner that he is not eligible for membership in the Florida Retirement System, and denied him reinstatement in SCOERS. Previously, in 1970, the Petitioner had rejected an opportunity to become a member of the Florida Retirement System. He has left his contributions of SCOERS on deposit. His contributions to the Florida Retirement System since 1979 are in the process of being refunded.

   
   

10. Essentially, the Petitioner contends that he was disenrolled from membership in SCOERS by the college wrongfully, as a result of administrative error; the Respondent claims that there was no error because the Petitioner was not eligible for membership in the SCOERS retirement system, and does not meet the criteria for membership in the Florida Retirement System.

    
    

    CONCLUSIONS OF LAW

    
    

11. Chapter 122, Florida Statutes, is the law governing the State and County Officers and Employees Retirement System (SCOERS). Section 122.02, Florida Statutes, provides in part:

    
    

    "State and County Officers and Employees shall include all full-time officers or employees who receive compensation for services rendered from state or county funds. . . provided that such compensation in whatever form paid shall be specified in terms of fixed monthly salaries by

    the employing state or county agency or state or county official and shall not in clude amounts allowed for professional employees for special or particular ser vices or for subsistence and travel expenses ...

    
    

12. In its response to the Employment Relationship Questionnaire the Broward Community College defined the Petitioner's employment relationship to be on a part-time basis. Moreover, the college's president asserted in 1978 that the Petitioner's routine and special issue duties for the college required only

    30 hours per month. Thus, the total employment relationship between the

    Petitioner and the college is inconsistent with the full-time employment status required by the above statute.

    
    

13. The Florida Attorney General, in AGO 060-106, further interpreted the full-time employment requirement contained in Section 122.02(1), Florida Statutes, as follows:

    
    

    "...it appears that for officers and employees to be within the purview of the State and County Officers and Em ployees Retirement System they must be full-time employees on fixed monthly salaries. `Full-time' is defined by

    Webster as `the amount of time considered the normal or standard for working

    during a given period, as a day, week

    or month.' In Johnson v. Stoughton Wagon Company, 118 Wis. 439, 95 N. W. 394, text 397, full-time employment was deemed an employment or business to the exclusion of the conduct of other businesses such as require the substantial part of his time or attention..."

    
    

14. This conclusion is also consistent with AGO 059-22 in which the Attorney General stated:

    
    

    "As Section 122.02, Florida Statutes, supra, includes only "... all full-time officers

    or employees... within the coverage of Chapter 122, Florida Statutes, it appears that part-time or temporary employees .

    should not be included in the State and County Officers and Employees Retirement System.

    
    

15. The facts surrounding the employment relationship between the Petitioner and the college lead to the conclusion that he was an independent contractor, consultant, or other professional person, as defined by Section 22B- 6.Ol(l2), Florida Administrative Code, to be:

    
    

    "...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 con sultant or other professional person usually: is compensated from an other 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..."

    
    

    The Petitioner, consequently, is not eligible to be enrolled in SCOERS.

    
    

16. Chapter 121, Florida Statutes, governs the Florida Retirement System. Section 121.01(11), Florida Statutes, defines an officer or employee as "any

person receiving salary payments for work performed in a regularly established position." An employee who is filling a temporary position is not eligible for membership in the Florida Retirement System (Section 22B-1.04(6), Florida Administrative Code). This rule includes professional persons on contract as defined by Section 22B-6.Ol(l2), Florida Administrative Code, in the category of temporary employees. (Section 22B-1.04(6)(b)(2), Florida Administrative Code). Thus, the Petitioner is not eligible for membership in the Florida Retirement System.

RECOMMENDATION

From the foregoing findings of fact and conclusions of law, it is RECOMMENDED, that the Petitioner, Donald W. Hulmes, be denied reinstatement

in the State and County Officers and Employees Retirement System, and that he be denied membership in the Florida Retirement System.

THIS RECOMMENDED ORDER entered on this 24th day of June, 1981.

WILLIAM B. THOMAS

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 24th day of June, 1981.

COPIES FURNISHED:

M. Terry McNab, Esquire Post Office Box 12 Tallahassee, Florida 32302

Augustus D. Aikens, Jr., Esquire Division Attorney

Division of Retirement Cedars Executive Center 2639 North ionroo Street Tallahassee, Florida 32303

Docket for Case No: 80-002181

Orders for Case No: 80-002181