Judges: D. R. ALEXANDER
Agency: Department of Management Services
Latest Update: Jul. 24, 1984
Summary: Part-time county attorney was ineligible for retirement system.
84-0389STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BILL A. CORBIN, )
)
Petitioner, )
)
vs. ) CASE NO. 84-0389
) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF RETIREMENT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing in the above case was held before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on May 7, 1984, in Blountstown, Florida.
APPEARANCES
For Petitioner: Bill A. Corbin, Esquire
305 Fannin Street Blountstown, Florida 32424
For Respondent: Augustus D. Aikens, Jr., Esquire
Cedars Executive Center 2639 North Monroe Street Suite 207C-Box 81
Tallahassee, Florida 32303 BACKGROUND
Petitioner, Bill A. Corbin, a participant in the Florida Retirement System (FRS), was notified by respondent, Department of Administration, Division of Retirement, on April 22, 1983, that his membership in the FRS was being terminated effective July 1, 1979, on the ground petitioner was ineligible for membership. Corbin served as County Attorney for both Calhoun and Liberty Counties at varying times from 1973 until 1983.
Petitioner requested a formal administrative hearing to contest the action of respondent pursuant to the provisions of Subsection 120.57(1), Florida Statutes. The matter was referred by respondent to the Division of Administrative Hearings on January 17, 1984, with a request that a hearing officer be assigned to conduct a hearing. By notice of hearing dated March 5, 1984, the final hearing scheduled May 1984 in Blountstown, Florida.
At the final hearing petitioner testified on his own behalf and presented the testimony of S.D. Whitfield, a Calhoun County Commissioner, and Willie D. Wise, Clerk of the Circuit Court for Calhoun County. He also offered petitioner's exhibits 1-3; all were received in evidence. Respondent presented the testimony of Andrew Snuggs, enrollment supervisor for the Division, and offered respondent's exhibits 1-4; all were received in evidence.
There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by respondent and petitioner on June 1 and 13, 1984, respectively, and have been considered by the undersigned in the preparation of this Order. Findings of fact not included in this Order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.
The issue herein is whether petitioner was entitled to participate as a member of the Florida Retirement System from July 1, 1979 to March 1, 1983 while serving as county attorney for Calhoun County and from April 1, 1983 until August 26, 1983 while serving as county attorney for Liberty County.
Based upon all of the evidence, the following findings of fact have been determined:
FINDINGS OF FACT
Petitioner, Bill A. Corbin, has been a member of the Florida Bar since October, 1972 and has continually engaged in the private practice of law in Blountstown since that time. His present office is located at 305 Fannin Street, Blountstown, Florida.
On January 1, 1973, petitioner was retained by the Calhoun County Board of Commissioners to represent the county in the capacity of county attorney. He remained in that position until March 1, 1983, or a period of ten years. During that period of time he was a member in good standing of the Florida Retirement System (FRS) and made the required contributions into the program.
From April 1, 1980 until August 26, 1983, Corbin also served as county attorney for Liberty County. When he left the employ of Calhoun County on March 1, 1983, he reenrolled in the FRS effective the same date using his employment with Liberty County as a basis for the continued enrollment.
After conducting an audit of petitioner's employment in early 1983, respondent, Department of Administration, Division of Retirement, advised petitioner by letter dated April 22, 1983 that because he failed to comply with current FRS membership requirements, he was being removed from FRS membership effective July 1, 1979. The effect of this action was to leave Corbin with approximately 6 1/2 years of creditable service with the FRS rather than almost
10 1/2 years. The proposed agency action triggered the instant proceeding.
The position of county attorney in Calhoun County was a regularly established position and has been for some 25 years. The same is true for the county attorney slot in Liberty County. In Calhoun County, Corbin was paid on a monthly basis and had the normal deductions made from his salary. He received the same annual percentage increase in salary as did other county employees. He was also covered under the County's errors and omissions policy, and was eligible for workers' compensation coverage. According to a Calhoun County
Commissioner, Corbin received annual and sick leave of one day per month while serving as county attorney. However, unlike other county employees, he was not compensated for unused leave when he terminated employment, and did not have to fill out leave slips as do other employees when taking leave. He also was given stationery, use of a reproduction machine, and clerical help from the county clerk's office when necessary.
Corbin's initial employment with Calhoun County was based upon an oral agreement between he and the commissioners. This agreement was later reduced to writing in 1979 in order to comply with concerns expressed by the county's outside auditors. The standard employment contract specified a set fee per month for Corbin to attend regular Board meetings, advise them on legal matters concerning County business, and to prepare resolutions, correspondence and ordinances. Additional services concerning litigation were rendered on either a contingent fee basis or an hourly rate basis. These sums were paid from monies set aside each year by the County for legal services not covered by Corbin's monthly salary. No deductions were taken from payments made to Corbin for these additional services. The contract also provided that either party could terminate the same upon giving thirty days' notice. A similar agreement was executed by Corbin for his employment with Liberty County except that the agreement called for compensation at a rate of $40 per hour.
Corbin's normal duties generally included attending two regular board meetings each month which lasted from two to twelve hours each, attending special meetings, handling correspondence, keeping minutes of each meeting, and being on call for requests for advice from Board members. In all, petitioner estimated he spent approximately 30 hours per month on Calhoun County business. Although some of the county work was performed in the courthouse where the boards met, most of it was done in Corbin's law office since he was not provided an office by either county.
The members of the Board control petitioner's hours by assignment of the work to be done, including requests for advice, research and opinions, and litigation. The Board determines which cases will be settled, defended or appealed. Corbin is required to accept any case or matter assigned, and does not reject assignments. However, the Boards do not control the day to day methods by which petitioner litigates cases and performs legal judgments.
Petitioner does not supervise any employees employed by the County nor does he supervise or direct the activities of any full time or part time assistant county attorneys or legal secretaries.
The rule which makes petitioner ineligible for membership in the FRS is Rule 22B-1.04, Florida Administrative Code, which became effective on July 1, 1979. After the rule was adopted, respondent sent a memorandum to all local agencies, including Calhoun and Liberty Counties, requesting that they review those employees that might fall within the "professional" status in order to determine their eligibility under the newly adopted rule. A copy of the rule was also sent to each local agency. The agencies were then required to transmit information on each such employee to the respondent. Thereafter, it began the lengthy process of auditing all reporting units, including the two counties in question. Because respondent is now reviewing over 700 reporting units, the audit process is time-consuming, and has resulted in lengthy delays in removing ineligible employees from FRS.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
As a general rule, participation in the FRS is compulsory for all officers and employees of an agency of government, including local school boards and county employees. 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 four or more consecutive months. Rule 22B-1.04(5)(b), Florida Administrative Code. However, an exception has been created by rule for temporary positions even though they may exist beyond four consecutive months. Rule 22B-1.04(6), Florida Administrative Code. A temporary position in a local agency, such as a county, includes all consultants and other professional persons on contract. Rule 22B-1.04(6)(e)6., Florida Administrative Code. This category of personnel is defined within Rule 22B-6.01(12), Florida Administrative Code.
As a basis for removing petitioner from the FRS, respondent contends in brief 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 the FRS. Rule 22B-1.04(6). It also argues that under the facts and circumstances in the case at bar, petitioner is merely an independent contractor vis a vis an employee of the Board of County Commissioners and as such, cannot qualify for FRS membership.
In his proposed order petitioner does not strongly contest respondent's assertions, but instead contends he had vested rights as of January 1, 1983 in the state retirement system, and those rights cannot be affected or altered by subsequent statutory enactments. To do so he argues, would impair the contract, and be violative of both state and federal constitutional provisions. He also suggests the action of respondent is retroactive in nature, and is therefore illegal.
Considering petitioner's contentions first, it is noted that respondent clearly has the authority to disenroll petitioner as of the date upon which he was determined to be ineligible to participate in the FRS even if retirement rights have vested. Henry v. Department of Administration, Division of Retirement, 431 So.2d 677, 681, (Fla. 1st DCA 1983). 1/ In the case at bar, Corbin was first found to be ineligible on April 22, 1983, when the agency head notified him that he was no longer eligible to participate in the FRS. The question of retroactive disenrollment is not so simple. According to Henry, whether retroactive disenrollment is permissible depends upon the "facts and circumstances of (the) case." Id.at 681. There the Court noted that attorney Henry was not investigated by the agency for some four and one-half years after
the date on which the agency sought to disenroll him, that he had no notice that he was ineligible for membership in FRS or that his status was tentative, and he was forced to forego other retirement alternatives during the period in question. The Court accordingly found "retroactive disenrollment would be inequitable under the facts and circumstances of (the) case." Henry, 431 So.2d at 681.
In the case at bar, petitioner continued making contributions in the FRS until August, 1983, when he ceased employment as a county attorney, or some four years after he became ineligible under Rule 22B-1.04. The record reflects that his status was not even audited by respondent until 1983. But in defense of the agency, it must be recognized that it had to audit hundreds of local governmental units and literally thousands of affected employees who obviously would be reluctant to give up their membership in the FRS even though the rules had changed. It is concluded that because respondent promptly notified all reporting units of the rule change, and requested they advise the agency of any employees who might be removed from membership by virtue of the rule change, respondent was not negligent in failing to audit petitioner's account until 1983, particularly in view of agency manpower and budget constraints and the sheer number of accounts that had to be audited. Further, by promptly giving such notice to Liberty and Calhoun Counties, any lack of notice that Corbin's status was tentative was due to a failure by those counties to so advise him. Likewise, because Corbin's eligibility expired on July 1, 1979, he had no vested rights, and the question of impairment of a contract becomes moot.
The only remaining issue to be resolved, and one not vigorously contested by petitioner, is whether petitioner falls within the definition of a professional person as defined by Rule 22B-6.01(12). If he does, other pertinent rules make clear that Corbin's petition must fail.
The rule in question defines a 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 con
sultant or other professional 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 by written contracts to provide certain legal services, (b) works according to his own methods, (c) is generally not subject to the control of his employers, except as to the results of his work, (d) does not earn annual or sick leave in the same manner as do other county employees, (e) does a majority of his work in his own office rather than on the county's premises, and (f) bears full expenses for the cost of his office facilities (other than the actual meetings). While it is true petitioner is paid from a regular salaries account, this in itself is insufficient to remove him from the category of a professional person. Indeed, petitioner's situation is almost identical to that found in Ben L. Bryan, Jr. v. Department of Administration, Division of Retirement, DOAH Case No. 82-3460, Final Order dated dune 7, 1983, (a part-time attorney for the St. Lucie County
School Board found ineligible for the FRS) John Potter v. Department of Administration, Division of Retirement, DOAH Case No. 83-1747, Recommended Order issued March 2, 1984 (part-time attorney for Glades County School Board found ineligible for FRS), and Harry A. Blair v. Department of Administration, Division of Retirement, DOAH Case No. 83-746, Recommended Order issued May 4, 1984 (part-time attorney for Lee County School Board found ineligible for FRS); Edwin B. Browning, Jr. v. Department of Administration, Division of Retirement, DOAH Case Nos. 83-1442, 83-1639 and 83-1640, Final Order dated June 14, 1984 (part-time attorney for Lafayette, Madison and Taylor Counties found ineligible for FRS). Accordingly, it is concluded that petitioner is a "professional person" filling a "temporary position", and is, therefore, ineligible to participate in the Florida Retirement System.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Bill A. Corbin to remain in the Florida
Retirement System from July 1, 1979 through August 26, 1983 be DENIED.
DONE and ENTERED this 18th day of June, 1984, in Tallahassee, Florida.
DONALD R. ALEXANDER
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 18th day of June, 1984.
ENDNOTE
1/ In Henry, the attorney was first advised by the Division of Retirement in June, 1978 that he was ineligible to participate in the FRS, and that he would not be given credit for employment, with Tallahassee Memorial Hospital during the period from January 1, 1974 until June, 1978.
COPIES FURNISHED:
Bill A. Corbin, Esquire
305 Fannin Street Blountstown, Florida 32424
Augustus D. Aikens Jr., Esquire Cedars Executive Center
2639 North Monroe Street Suite 207C-Box 81
Tallahassee, Florida 32303
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION
DIVISION OF RETIREMENT
BILL A. CORBIN,
Petitioner,
vs. DOAH CASE NO. 84-0389
DOR CASE NO. DR83-26
STATE OF FLORIDA,
DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT,
Respondent.
/
FINAL ORDER
On May 7, 1984, Donald R. Alexander, Hearing Officer, with the Division of Administrative Hearings, held a formal hearing in this case in Blountstown, Florida.
APPEARANCES
For Petitioner: Bill A. Corbin, Esquire
305 Fannin Street Blountstown, Florida 32424
For Respondent: Augustus D. Aikens, Jr., Esquire
Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207-Building C Tallahassee, Florida 32303
A recommended order was issued on June 18, 1984. After consideration of the evidence, pleadings, and recommended order in this case, the Hearing Officer's recommended order is adopted by the Division of Retirement except as follows:
Upon consideration of the evidence, pleadings, and recommended order in this cause, the first two sentences of paragraph 4 of the Findings of Fact are eliminated from the findings as being both an inappropriately placed conclusion of law 1/ later abandoned by the hearing officer and mere recitations of evidence given in the proceedings.
Accordingly, it is ORDERED
That Petitioner is removed from the Florida Retirement System as of July 1, 1979 and;
All contributions made by the Board of County Commissioners of Calhoun and Liberty Counties for Petitioner's service after July 1, 1979 shall be returned to the counties and Petitioner's account will be adjusted accordingly.
DONE and ORDERED this 23rd day of July, 1984, in Tallahassee, Florida.
J. MCMULLIAN III
State Retirement Director
FILED WITH THE CLERK OF THE DIVISION OF RETIREMENT THIS 23rd DAY OF JULY, 1984.
ENDNOTE
1/ See numbered paragraph 2 of the Conclusions of Law.
COPIES FURNISHED:
Bill A. Corbin, Esquire
305 Fannin Avenue Blountstown, Florida 32424
Augustus D. Aikens, Jr., Esquire Division of Retirement
Cedars Executive Center 2639 North Monroe Street Suite 207-Building C Tallahassee, Florida 32303
Donald R. Alexander Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
Docket for Case No: 84-000389
Orders for Case No: 84-000389
