STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HILARY U. ALBURY, )
)
Petitioner, )
)
vs. ) CASE NO. 83-3941
) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )
)
Respondent. )
)
RECOMMENDED ORDER
For Petitioner: James T. Hendrick, Esquire
Key West, Florida
For Respondent: Stanley M. Danek, Esquire
Tallahassee, Florida
A final hearing was held in this case in Key West on April 11, 1984. The issue is whether petitioner Hilary U. Albury (Albury) is entitled to be a member of the Florida Retirement System (FRS) from July 1, 1979, forward.
Specifically, the issue is whether Albury, an attorney for the Monroe County School Board (School Board), is a "regular employee" entitled to membership or an independent professional contractor who is not entitled to membership.
FINDINGS OF FACT 1/
Petitioner Hilary U. Albury was admitted to The Florida Bar in 1947 and has since engaged in the practice of law in Key West, Florida. Since 1965, he has been a partner, and later shareholder, in a law firm which has continued in existence to the present. He is now 63 years old.
In the spring of 1971, Albury was contacted by the superintendent of Schools, A. J. Henriquez, and a member of the District School Board of Monroe County, Robert A. Dion, who were interviewing attorneys for the position of School Board Attorney. The position of School Board Attorney had been a salaried position for many years.
In order to induce Albury to accept the position, Dion and Henriquez urged him to consider the employee benefits to which he would be entitled as School Board Attorney, including group health and life insurance and membership in the Florida Retirement System. The existence of the health insurance benefit persuaded Albury to accept the position on May 11, 1971. At that time, the existence of FRS was not a consideration for Albury because he did not anticipate remaining the School Board Attorney for as long as ten years. The FRS benefit became important to Albury in later years when, as he approached the vesting period for his retirement benefits (May 11, 1981), membership in the FRS precluded Albury from participation in his firm's Keogh plan or in an IRA.
Since he assumed his duties as School Board Attorney in May, 1971, Albury has been duly enrolled in FRS. His initial enrollment was accomplished by Albury's completion and filing of the "blue top' form provided by respondent Department of Administration, Division of Retirement (Division). The School Board forwarded the form to the Division and began reporting Albury on its payrolls. The form did not contain Albury's job title, a description of his duties, or a description of Albury's employment relationship with the School Board.
Since May 11, 1971, all retirement contributions required by law have been remitted by the School Board on Albury's behalf. Prior to conversion to the employee noncontributory FRS in January of 1975, the School Board duly withheld from Albury's salary and remitted to the Division the contributions required of Albury.
Albury has at all times been paid his salary from the School Board's regular salaries and wages account. The School Board has at all times made appropriate deductions from Albury's salary for federal income taxes and federal Social Security contributions and has reported such salary and deductions on Internal Revenue Service Form W-2.
Albury at all times has participated in the group health hospitalization and life insurance benefits programs maintained by the School Board for its employees. He is covered under the School Board's workers' compensation insurance.
Albury receives paid annual leave and sick leave. But Albury is paid his monthly compensation whether he works 30 hours per month or the agreed-upon
15 to 20 hours per week. Albury's fixed monthly compensation does not vary with actual hours worked or sick or annual leave taken. While Albury submitted leave (both annual and sick) for some absences in recent years, he took 16 absences (from School Board meetings) over the years without formally requesting leave. Albury's personnel file indicates that he has taken a total of 41 days of annual leave and 10 days of sick leave (for open-heart surgery in 1983) since May, 1971. In Albury's case, annual and sick leave serve no useful purpose and are of no practical benefit to Albury.
With respect to method of compensation and leave, the School Board treats Albury much as it does other non instructional administrative personnel. The position of School Board Attorney is listed on a salary schedule with the other administrative personnel. After one adjustment, approximately two years after commencing his employment, Albury's salary has been increased annually in the same percentage as all other noninstructional employees on the School Board's salary schedules without any negotiation. Although Albury's performance is subject to annual evaluation, the evaluations are cursory and not even pro forma. Neither the School Board Attorney nor the other upper-level noninstructional personnel are required to "punch a clock." Neither the School Board Attorney nor the other top-level administrative personnel are required to maintain fixed office hours. The School Board Attorney is paid "to get the job done," however much time that takes, just as the other top level administrative personnel are.
Since May 11, 1971, Albury's duties and responsibilities as School Board Attorney have remained virtually the same. From, May 11, 1971, to October 8, 1979, Albury operated without a written job description or contract. Effective October 8, 1979, as a result of audit criticism in an annual audit by the Florida Auditor General, the School Board formalized in writing a job
description setting forth in writing the oral agreement which had been in existence between the School Board and Albury from the outset.
Under the job description, Albury is required to advise the School Board on legal matters. Generally, Albury is expected to attend the School Board's regular meetings plus special meetings of the School Board. In addition, Albury handles all necessary legal transactions and activities between meetings, such as advising School Board members and the superintendent upon proper request.
Albury's job description states that he is not responsible for litigation in which the School Board or its officers are parties, plaintiff or defendant. Litigation matters are referred to contract attorneys to handle on an hourly rate basis. Members of Albury's firm have handled some of the School Board's litigation on a contract basis.
Although Albury also engages in the practice of law as a member of his law firm, his arrangement with the School Board requires him to be on call at all times to serve the School Board on a priority basis. This gives the School Board an unlimited and preferential call upon his time and services. Under this arrangement, Albury even was required to provide advice on an emergency matter concerning the School Board budget which arose in the summer of 1983 while Albury officially was on sick leave recovering from open-heart surgery.
Albury also has recommended to the Board that certain specialized nonlitigation legal matters be handled by other counsel under hourly rate retainer agreements. Acting on this advice, the School Board has retained a labor relations firm to represent the School Board on workers' compensation matters. As with the attorneys representing the School Board in litigation, these law firms are not considered by the School Board to be employees. They negotiate their fees with the School Board and are paid on an hourly rate basis from the "Professional Services and Contracted Services" account, not the regular salary account.
Other than the litigation, labor relations, and workers' compensation, Albury has general responsibility for the legal representation of the School Board and the handling of all other legal matters for the Board and the administration of the school system. He has no control over his case load, nor over the frequency or nature of the requests made upon him for legal advice, preparation of legal documents, and the like. When Albury desires to take a vacation or be out of the county overnight, he consults with the superintendent and, on occasion, is required to change his vacation or travel plans to accommodate the scheduling requirements of the School Board or the superintendent.
Albury does not supervise any employees of the School Board.
Likewise, there is no member of the School Board staff competent to instruct or direct Albury on the manner in which to discharge his responsibilities as School Board Attorney. However, the School Board does impose certain requirements on the manner in which Albury performs his work (e.g., attendance at meetings, workshops, and conferences and compliance with School Board formats for presentation of information and opinions to the School Board).
In addition, the School Board supplies Albury with educational materials, including the Florida Statutes, the journals and publications of the national and state school board attorneys' associations and other reports of changes in education law. These materials are received by Albury at, and are
maintained by him at, Albury's private law office. The School Board pays Albury's membership dues in these associations. In addition, Albury, at the direction of the superintendent, attends continuing legal education programs on subjects on which the School Board wants Albury to remain current, including programs in the area of asbestos litigation, education of the handicapped, the Administrative Procedure Act, and other major changes in the law. Albury would then be responsible for reporting pertinent changes in the law to interested School Board personnel at the direction of the superintendent. The School Board reimburses Albury's travel expenses under Section 112.061, Florida Statutes, as it does whenever Albury travels on School Board business.
Until 1980 or 1981, the School Board building had very limited space, and there, was no room for the School Board Attorney's office. Accordingly, for the convenience of the School Board, Albury utilized his private law office and secretary in the performance of his duties as School Board Attorney. Albury's law office was less than one block from the School Board offices, and this arrangement was convenient and agreeable to the superintendent and the School Board. In 1980 or 1981, new School Board offices were constructed, and the School Board has made available to Albury an office in the School Board building. This office also is available to School Board members and is designated for both the School Board Attorney and School Board members. The office is not equipped as Albury's permanent office, and he does not spend very much time in this office. Generally, approximately eight hours per month of Albury's work for the School Board are spent in attendance at School Board meetings. The remainder of his 15 to 20 hours per week of School Board work is performed from his private office or at places other than his office at the School Board building.
Until relatively recently, Albury's private secretary did almost all of his secretarial work in connection with his School Board representation. Currently, more than half of Albury's secretarial support for School Board work is provided by one of the three secretaries serving the School Board's administrative staff. Albury has no direct line of supervisory authority over these secretaries and must obtain the superintendent's permission before assigning work to one of the secretaries. When necessary, the assistant superintendent assists Albury in locating and furnishing copies of portions of School Board files to Albury. This type of secretarial assistance and other support generally is not furnished to other attorneys retained by the School Board.
Albury does essentially all of the School Board work himself. On rare occasions members of, or associates in, Albury's law firm have substituted for him at School Board meetings. Since July 1, 1979, such substitutes have made themselves available on the School Board's request as a favor to Albury and the School Board, but the School Board has not had occasion to use one of the available substitutes. In the past, on the rare occasions when a substitute appeared in Albury's absence (approximately six to eight times in some 300 scheduled meetings), the substitute was not paid either by Albury or by the School Board.
All of Albury's School Board compensation is deposited in Albury's separate personal bank accounts and is not commingled with the accounts of his law firm. However, Albury's law firm takes into account the amount of time Albury spends on School Board representation in deciding how to distribute the earnings of the law firm.
As previously mentioned, Albury's enrollment card did not indicate the position which he held. The Division did not seek that information or otherwise question Albury's employment status until much later. Effective July 1, 1979, the Division promulgated new rules which, if read, would have placed Albury on notice to inquire as to his eligibility for membership in the FRS. On or about September 15, 1979, the Division sent all Florida Retirement System reporting agencies a memorandum calling attention to the new rules and the question of the eligibility of attorneys in particular. On or about February 26, 1981, the Division directed another memorandum to all Florida Retirement System reporting units, again calling attention to the eligibility status of certain professionals, including attorneys, and asking the addressees, including the School Board, to complete a questionnaire to assist the Division in determining the membership eligibility of such persons under the new rule. The School Board, through its superintendent, returned the completed questionnaire on or about April 4, 1981. On or about April 6, 1982, the School Board responded to a subsequent Division letter and provided requested additional information. The Division took no official action against Albury until approximately July 25, 1983, when it advised Albury by letter: "It appears that you are not eligible to participate as a member of the FRS." This proceeding ensued.
CONCLUSIONS OF LAW
Albury had no vested interest in FRS membership as of July 1, 1979. Four Division determinations of prospective ineligibility, one of which withstood appeal, support this conclusion. Bryan W. Henry v. Department of Administration, Division of Retirement, 4 FALR 1295A (DOA, DOR 1982), rev'd in part, aff'd in part, Henry v. Department of Administration, Division of Retirement, 431 So.2d 677 (Fla. 1st DCA 1983); Final Order, Blair v. Department of Administration, Division of Retirement, DOAH Case No. 83-746, May 4, 1984; Final Order, Potter v. Department of Administration, Division of Retirement, DOAH Case No. 83-1747, March 2, 1984; Final Order, Ben L. Bryan, Jr. v. Department of Administration, Division of Retirement, DOAH Case No. 82-3460, June 7, 1983. As those cases state or imply, rights under the FRS do not vest during the first ten years of membership. See also Florida Sheriffs Ass'n v. Department of Administration, 408 So.2d 1033 (Fla. 1982). Therefore, Albury had no vested right to retirement benefits as of July 1, 1979.
There are not present in this case the elements of an estoppel percent to prevent the Division from denying Albury's FRS membership after July 1, 1979. See Henry, 431 So.2d at 681; Final Order, Potter v. Department of Administration, Division of Retirement, supra. Although under certain circumstances the state will be estopped, those circumstances must include a positive act which misrepresents material fact. See also Martin v. Williams,
364 So.2d 549 (Fla. 1st DCA 1978); Department of Administration, Division of Retirement v. Flowers, 356 So.2d 14 (Fla. 1st DCA 1978); Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977); Greenhut Construction Co. v. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA 1971).
Whether the Division would be estopped to deny Albury's membership before July 1, 1979, need not be addressed. The Division eliminated that issue by not proposing to make such a retrospective determination of ineligibility.
Section 121.051(1)(a), Florida Statutes (1983), provides that membership in the FRS is "compulsory as to all officers and employees Section 121.021(11), Florida Statutes (1983), states Officer or employee' means any person receiving salary payments for work performed in a regularly established position. "
A review of all the pertinent statutes and rules demonstrates that the question whether Albury is entitled to membership in FRS after July 1, 1979 (i.e., whether his salary payments are "salary payments for work performed in a regularly established position"), turns on whether Albury's position is that of a "consultant or other professional person on contract" as Rules 22B-1.04(6)(e)6 and 22B-6.01(12), Florida Administrative Code, define that phrase. See Final Order, Blair v. Department of Administration, Division of Retirement, supra. Rule 22B-1.04(6)(e)6, Florida Administrative Code, provides that "Consultants and Other Professional Persons on contract [as defined in 22B-6.01(12)3" are considered to be in" temporary positions" for retirement purposes and therefore ineligible for membership in the FRS. Rule 22B-6.01 (12), Florida Administrative Code provides:
(12) CONSULTANT OR OTHER PROFESSIONAL PERSON -- Means an individual who:
agrees to provide certain services; works according to his own methods; is not sub ject 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 compen sated 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. (See 22B-1.04 (6)(e)6.
Although located among rules which define eligibility in terms of the permanency of the position, it is evident that Rule 22B-1.04(6)(e)6 actually does not concern itself with whether a "professional or consultant on contract" is filling a "temporary position." Rather, it concerns itself with whether the "contract" is an "employment contract" or an "independent contract," as those terms are used in the common law.
There is no true definition of a common law "independent contract," as opposed to the "employment contract." In the development of the common law, such distinctions have been drawn on a case-by-case basis. Out of this process, certain attributes of the two types of contract have been described and parameters have been established. But there remains a gray area of fact patterns which must be determined on a case-by-case basis. Cf., e.g., 2 Fla. Jur. 2d, Agency and Employment, Section 107:
There is no absolute rule for determining whether one is an independent contractor or an employee, and each case must be determined on its own facts. The commonly recognized tests of the independent con tractor relationship, although not neces sarily concurrent or each in itself con trolling, are the existence of a contract for the performance at a fixed price, the independent nature of his employment of assistants with the right to supervise
their activities, his obligation to furnish
necessary tools, supplies, and materials, his right to control the progress of the work except as to final results, the time for which the workman is employed, the method of payment, whether by time or by job, and whether the work is part of the regular business of the employer. One may be an independent contractor, however, even though the company with whom he has the contract happens to be engaged in some places in same kind of business. And if his business is in fact operated indepen dently of the company, he will be held to be independent contractor notwithstanding
the fact that the company owns the physical property on which he has his place of business.
Similarly, Rule 22B-6.01(12) provides guidance, but is not a true definition. It is not a formula into which facts are plugged and from which the answer to the question necessarily follows. On the contrary, questions frequently remain after one attempts to use Rule 22B-6.01(12) as a true definition or formula. 2/
The criteria of Rule 22B-6.01(12), Florida Administrative Code, must be examined with the foregoing in mind:
For his salary, Albury agrees to provide all legal services the School Board needs except litigation. In this respect, there is not much difference between Albury's relationship with the School Board and the job description of many other regular employees.
Albury works according to his own methods the same as any publicly employed lawyer works according to his own methods, especially when he is the senior or only lawyer representing the agency.
Albury, like any lawyer, decides how to best accomplish the work at hand unless the client instructs him otherwise.
The School Board budgets and makes available for Albury an office in the School Board building designated as the School Board Attorney's Office. Albury does not use this office very frequently. But, at the same time, the percentage of School Board work Albury performs at his private law office was not established.
Similarly, Albury's private secretary does some work for Albury relating to School Board work. But the School Board administrative staff's secretarial pool is available for Albury's use, and currently a majority of Albury's typing and other clerical work relating to his School Board work is done by employees of the School Board.
Finally, Albury's contract with the School Board is personal; i.e., the contract is with Albury personally, and Albury does virtually all of the School Board work himself. Partners and associates in his private law firm do not do Albury's School Board work (although in very rare and exceptional cases, one has sat in for Albury at a School Board meeting as a favor to Albury and the School Board). Accordingly, Albury's School Board salary is personal compensation and is not commingled with the accounts of his private law firm.
The school Board has no more or less control over Albury than any public agency has over its employed lawyers. The School Board imposes certain requirements on the manner in which Albury performs his work (e.g., attendance at meetings, workshops, and conferences and compliance with School Board formats for presentation of information and opinions to the School Board). But, besides the ethical requirements that Albury maintain his independence, no School Board personnel has the legal expertise to be able to or want to control Albury's lawyering.
Albury enjoys all fringe benefits of life insurance, health insurance, and workmen's compensation insurance.
Albury is compensated from the School Board's salary account.
Albury does earn sick leave and annual leave, although it serves no useful purpose and is of no practical benefit to either Albury or any of the School Board's other upper-level administrative personnel.
Albury does some of his School Board work in his own law office and some at the School Board offices. The Division did not establish the percentage of work done at each place.
For all the foregoing reasons, Albury's contract with the School Board is more like the employment contract found in the case of Frank A. Howard, Jr.
v. Department of Administration, Division of Retirement, 4 FALR 542A (DOA, DOR 1981), than it is like the independent contracts found in the cases of Harry Blair, John Potter, Bryan Henry, and Ben Bryan, cited above. Indeed the contract between Hilary Albury and the School Board is a contract of employment. Accordingly, Albury's salary payments are "salary payments for work performed in a regularly established position," under Section 121.021(11), Florida Statutes (1983), and Albury is entitled to membership in the Florida Retirement System both before and after July 1, 1979.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division enter a final order declaring Hilary U. Albury eligible for membership in the Florida Retirement System both before and after July 1, 1979.
RECOMMENDED this 22nd day of May, 1984, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON 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 22nd day of May, 1984.
ENDNOTES
1/ The proposed findings of fact submitted by the parties have been considered and, except to the extent consistent with these Findings of Fact, are rejected as either not proven by competent substantial evidence, contrary to facts proven by the opposing party, or irrelevant.
2/ Albury contends that at least all of the first four "mandatory" criteria and perhaps some of the next three "permissive" criteria in 22B-6.01(12) must be found to exist before one can be categorized as a "Consultant or Other Professional Person. But, if a formula, 22B-6.01(12) also could be read the other way; i.e., if "Consultants and Other Professional Persons" usually, but do not always meet the "permissive" criteria, whenever the "permissive" requirements are met, the person in question always must be a "Consultant" or "Other Professional Person." For if the first four requirements are supposed to be "mandatory" requirements under a formula, why would the Division have bothered to add the "permissive requirements"?
COPIES FURNISHED:
James T. Hendrick, Esquire
317 Whitehead Street
Key West, Florida 33040
Stanley M. Danek, Esquire Division of Retirement Department of Administration Cedars Executive Center
2639 North Monroe Street Suite 207, Building C Tallahassee, Florida 32303
Mr. Nevin G. Smith Secretary
Department of Administration
435 Carlton Building Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION
DIVISION OF ADMINISTRATIVE HEARINGS
HILARY U. ALBURY,
Petitioner,
vs. CASE NO. 83-3941
STATE OF FLORIDA,
DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT
Respondent.
/
FINAL ORDER
This case was presented on a petition by Hilary U. Albury for review of the decision of the State Retirement Director that he was ineligible for membership in the Florida Retirement System (FRS) after July 1, 1979. A hearing was held pursuant to notice on April 11, 1984, before J. Lawrence Johnston, designated hearing officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: James T. Hendrick
317 Whitehead Street
Key West, Florida 33040
For Respondent: Stanley M. Danek, Esquire
Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207-Building C Tallahassee, Florida 32303
The hearing officer filed his recommended order on May 22, 1984, in which he sustained the Petitioner's assertion and concluded he was eligible for membership in FRS both before and after July 1, 1979. This determination was based upon the hearing officer's erroneous conclusions of law and their application to the facts of this case. Therefore, as will be more fully developed herein, the Division supplements the findings of fact, rejects the conclusions of law contained in the recommended order, substitutes its own conclusions of law and determines that the Petitioner shall be removed from membership in FRS as of July 1 1979.
SUPPLEMENTAL FINDINGS OF FACT
The findings of fact in the recommended order are supported by competent, substantial evidence. They are adopted with modification together with the following supplemental findings of fact and as such both constitute the complete set of findings of fact for purposes of this final order.
Albury also engages in the private practice of law as a member of a law firm. He devotes a majority of his working hours in that practice and is prohibited from representing other school boards because of his work relationship with the Monroe County School Board (the School Board).
Until 1980 or 1981, Albury utilized his private law office and his private secretary to perform his duties as school board attorney. There is no evidence that this was for the convenience of the School Board, and it was a known fact that he performed his work from his private law office. The new school board office was renovated in 1980 or 1981, but no office was set up for Albury until late 1983. At that time, one room was made available to both the school board members and to Albury as school board attorney who jointly shared the one room. Prior to late 1983, that room was used by a school board employee who retired in mid-1983. Albury spends very little time in this office since a majority of his duties are performed elsewhere.
Until relatively recently, Albury's private secretary did most of his secretarial work in connection with his school board representation. She was a long time employee and very familiar with his working habits, etc. When he left his employment, his new secretary who was less familiar with his habits and school board matters did less work in this area. Consequently, Albury used any one of three school board secretaries for assistance. He does not supervise any of the three secretaries and must request permission from their supervisors before having them perform work for him.
CONCLUSIONS OF LAW
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(11), Florida Statutes. A regularly established position is one which will be in existence for a period of more than four 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 which are the opposite of regularly established ones and are, therefore, ineligible for FRS membership. 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 under Rule 22B-1.04(6)(e)6., Florida Administrative Code. These positions are defined in Rule 22B-6.01(12), Florida Administrative Code.
As a basis for removing Petitioner from FRS, Respondent contends 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 FRS [Rule 22B-1.04(6)]. It
also maintains that under the facts and circumstances in the case at bar, Petitioner is an independent contractor and not 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 above rules. He also relies upon the rationale contained in 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 consultant or other professional person as defined by Rule 22B- 6.01(12). If he does, other pertinent rules make clear that Albury's petition must fail.
Rule 22B-6.01(12), Florida Administrative Code, defines a consultant or other 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 pro fessional 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 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) earns annual and sick leave, but such leave serves no useful purpose and are of no practical benefit to Albury, (e) does a significant portion of his work in his own office rather than on the school board's premises, meetings of the board aside, and (f) bears full financial responsibility for the cost of his office facilities. While it is true he enjoys certain fringe benefits (e.g., health 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 consultant or other professional person.
The facts here are distinguishable from the Howard case in that Howard was provided office space at school board headquarters and a staff, paid for by the school board, to operate the office. Howard hired, fired, supervised and evaluated his full time school board office staff consisting of three (3) full- time attorneys and two full-time legal secretaries. Petitioner here had no direct authority to hire, to fire, or to evaluate school board employees on their performance. Instead, Petitioner's situation is almost identical to that found in Ben L. Bryan, Jr., v. Dept. of Admin., Div. of Retirement, DOAH Case No. 82-3460, Recommended Order dated April 5, 1983.
Accordingly, it is concluded that Petitioner is a "professional person" filling a "temporary position", and is, therefore, ineligible to participate in the FRS.
Petitioner has alleged his job description with the School Board transforms him from a professional person on contract to that of "employee". However, there is no support in law for Petitioner's conclusion.
Whether the relationship is that of employer/employee or of independent contractor does not turn on the statements of the parties but upon an examination of all the circumstances which made up the intercourse between the parties.
A review of Petitioner's employment reveals no employer/employee relationship was created; rather, it shows an independent contractor status which was not intended to be covered under the FRS. An "employee" is one who, for a consideration, agrees to work subject to the orders and directions of another, usually for regular wages but not necessarily so, and further agrees to subject himself at all times during the period of service to the lawful orders and directions of the others in respect to the work to be done. This exercise of control over the employee as well as the performance of the work to the extent of prescribing the manner in which the work shall be executed is the ultimate test of the nature of the relationship between employer and employee.
These essential elements are not present in Petitioner's employment. It is clear from the evidence submitted Petitioner is merely subject to control by the School Board as to the results obtained rather than in the methods employed. Otherwise stated, other than during attendance at board meetings, Petitioner is free to work where ever and as much as he himself deems necessary. Petitioner has verbally contracted, for a stated sum, to provide specific legal services to the School Board.
The independent nature of the business in which Petitioner is engaged also suggests that the attorney is an independent contractor.
An attorney has no power to act for another as legal advisor or counsel by virtue of his license alone. He must have a contract of employment, express or implied, with the party for whom he acts. This is the nature of the contract relationship which it is held Petitioner has with the School Board by whom he has been employed. No distinction in employment status is discernable between Petitioner's relationship with the School Board and the relationship of a private attorney contracting to provide legal services to any other client. In each case an attorney is engaged primarily to provide legal services as an independent contractor.
Where the status of the employment for retirement purposes is an issue, as in the instant case, it necessary to characterize the status of the employment as an "employee" or "independent contractor" in order to determine if the employer must pay contributions under Chapter 121, Florida Statutes, and whether the employee is entitled to retirement benefits. Similar inquiries have been made by the court: whether, for example, an employer must pay contributions under the unemployment insurance act, Farmers and Merchants Bank
v. Vocelle, 106 So.2d 292 (Fla. 1st DCA 1958); whether an employee is entitled to benefits under the act, Florida Industrial Commission v. State, 155 Fla. 772,
21 So.2d 599 (1954); and whether benefits are payable under the Workers' Compensation Act, Pan American Construction Co. v. Searcy, 84 So.2d 540 (Fla. 1954).
The difference between an independent contractor and a servant is well recognized; Gentile Brothers Co. v. Florida Industrial Commission, 151 Fla. 857
10 So.2d 568 (1942), although the line between them is not always easy to draw. One of the more frequently read and accepted tests is set forth in 2 Fla. Jur. 2d, Agency and Employment, ss. 107:
"There is no absolute rule for determining whether one is an independent contractor or an employee, and each case must be determined on its own facts. The commonly recognized tests of the independent contractor relation ship, although not necessarily concurrent or each in itself controlling, are the existence of a contract for the performance at a fixed price, the independent nature of his employ
ment of assistants with the rights to supervise their activities, his obligation to furnish necessary tools, supplies, and materials, his right to control the progress of the work except as to final results, the time for which the work man is employed, the method of payment, whether by time or by job, and whether the work is part of the regular business of the employer. One may be an independent contractor, however, even though the company with whom he has the contract happens to be engaged in some places in same kind of business. And if his business is in fact operated independently of the company, he will
be held to be independent contractor notwith standing the fact that the company owns the physical property on which he has his place of business." See also AGO 062-120.
Comparing the Petitioner's circumstances to those presented above, it is found that he carried on independent employment; he had a contract to do certain work at a fixed price.
The final important factor to be considered is whether the alleged employment is part of petitioner's regular business and not that of the School Board. The main purpose or business of the School Board is to provide education. Chapter 228, Florida Statutes. The mission of Petitioner's law practice is to provide legal services. This he has done.
In Bryan W. Henry v. State of Florida, Department of Administration, Division of Retirement, 431 So.2d 677 (Fla. 1st DCA 1983), the hearing officer found Bryan Henry's relationship with Tallahassee Memorial Hospital (TMH) was in the nature of a private legal representation. Henry performed the majority of the legal work for the hospital at his private law office, maintained his own library, utilized his own materials and clerical assistance, did not accrue annual or sick leave, engaged in private practice of law, and handled the representation of TMH in the same way as he handled his other clients. The District Court found Division of Retirement justified in declaring Henry to be an independent contractor and not an employee. Id. at page 679. Like Bryan Henry, Petitioner's employment status is that of a consultant or other professional person as defined in Rule 22B-6.01(12), Florida Administrative Code.
Albury relies on the case of Frank A. Howard v. Department of Administration, Division of Retirement, 4 FALR 542A (DOA, DOR 1981). However,
the Howard situation is of little assistance to Albury. Since Albury's law firm does work for the school board, if Albury were an employee, then a statutory conflict of interest would be created under Section 112.313, Fla. Stat., Howard
v. State, Commission on Ethics, 421 So.2d 37 (Fla. 3rd DCA 1982). Only if Albury is an independent contractor is the conflict of interest avoided. The Howard case, supra, presents other differences from the case at bar. Howard had fixed hours of work in an office furnished by the school board. He supervised three attorneys and secretarial persons and did the hiring, firing and evaluation of those persons. Most of Howard's work for the school board was done in the school board administrative offices with the exception of occasional telephone calls from his private office. He further had the responsibility to oversee litigation handled by independent attorneys in specialized areas of expertise.
The criteria of Rule 22B-6.01(12), Florida Administrative Code, must be examined with the foregoing in mind.
For his salary, Albury agrees to provide specific legal services the School Board needs except litigation. In this respect there is not much difference between Albury's relationship with the school board and the relationship of any independent, self-employed attorney and his client.
Albury works according to his own methods the same as any publicly or privately employed lawyer works according to his own methods, especially when he is the senior or only lawyer representing the agency.
Albury, like any lawyer, decides how to best accomplish the work at hand unless the client instructs him otherwise.
Since late 1983, the school Board budgets and makes available for Albury a office in the school board building which he shares with members of the School Board. Albury does not use this office very frequently. The percentage of school board work Albury performs at his private law office or at the "shared" office was not established.
Similarly, Albury's private secretary does some work for Albury relating to school board work. The school board administrative staff's secretarial pool is available for Albury's use, and currently a majority of Albury's typing and other clerical work relating to his school board work is done by employees of the School Board. However, this arrangement is more a result in the recent change in Albury's private secretary than any agreement that school board employees should perform all of Albury's secretarial needs.
Albury does not have a written contract with the school board. Instead, his duties are specified in a written job description which is the same as the verbal contract which existed prior to October 1979. Albury's verbal contract is personal only in the sense that Albury does nearly all of the school board work himself, and on rare occasions members of his firm assist him in performing certain duties. Up until the recent change in his private secretary, most of his work was done by her, and even now a significant amount of his secretarial work is done by his new, private secretary. Although hid compensation is deposited in his personal bank account, the amount is taken into account when his law firm decides how to distribute its earnings.
The School Board has no more or less control over Albury than any public agency has over its employed lawyers. The School Board imposes certain requirements on Albury such as attendance at meetings, workshops, and
conferences and compliance with School Board formats for presentation of information and opinions to the School Board in the same manner any client would place requirements on his attorney. But, besides the ethical requirements that Albury maintain his independence, no school board personnel has the legal expertise to be able to or want to control Albury's lawyering.
Albury enjoys fringe benefits of life insurance, health insurance, and Workers' Compensation insurance and is compensated from the school board's salary account. He earns sick leave and annual leave, although it serves no useful purpose and is of no practical benefit to Albury.
Albury does some of his school board work in his own law office and some at the school board offices. In this regard, his work is no different than any attorney who must depend on a client for information, documents, conferences and must provide services at a location where the client has the most need for them, in this case, the school board administrative offices.
Based upon the foregoing findings of fact and conclusions of law, the Petitioner is found to be a "professional person" filling a "temporary position" and is, therefore, ineligible for participation in the Florida Retirement System as of July 1, 1979.
CONCLUSION
Based on the foregoing findings of fact and conclusions of law, it is ORDERED that Hilary U. Albury be removed from membership in the Florida
Retirement System effective July 1, 1979.
J. MCMULLIAN III
State Retirement Director
FILED WITH THE CLERK OF THE DIVISION OF RETIREMENT THIS 15th DAY OF AUGUST, 1984.
COPIES FURNISHED:
James T. Hendrick, Esquire
317 Whitehead Street
Key West, Florida 33040
Stanley M. Danek, Esquire Assistant Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207-Building C Tallahassee, Florida 32303
J. Lawrence Johnston Hearing Officer
Division of Administrative Hearings Department of Administration
2009 Apalachee Parkway
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Aug. 16, 1984 | Final Order filed. |
| May 22, 1984 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 15, 1984 | Agency Final Order | |
| May 22, 1984 | Recommended Order | Lawyer who worked for school board on salary but at his office or theirs as needed is eligible for Florida Retirement System (FRS). |
PALM BEACH COUNTY SCHOOL BOARD vs ADRIANA DELGADO, 83-003941 (1983)
DADE COUNTY SCHOOL BOARD vs. BARBARA BRYANT, 83-003941 (1983)
PALM BEACH COUNTY SCHOOL BOARD vs MIGUEL NAVARRO, 83-003941 (1983)
WINNIE ODEN vs FLAGLER COUNTY SCHOOL BOARD, 83-003941 (1983)
PALM BEACH COUNTY SCHOOL BOARD vs MONTANIQUE WINN, 83-003941 (1983)
