vs. ) CASE NO. 84-2795
Respondent. )
Consistent with the Amended Notice of Hearing issued by the undersigned on December 5, 1984, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Live Oak, Florida on January 2, 1985. The issue for consideration was whether Petitioner should be removed from enrollment in the Florida Retirement System.
For the Petitioner: Ernest A. Sellers, Esquire
For the Respondent: William A. Frieder, Esquire
Division of Retirement 2639 North Monroe Street Suite 207, Building C Tallahassee, Florida 32303
On July 6, 1984, Petitioner was advised by the Director of State Retirement that effective July 1, 1979, he was removed from membership in the Florida Retirement System. By Petition for Formal Proceedings dated July 26, 1984, Petitioner contested this determination and requested an administrative hearing be held pursuant to Chapter 120, Florida Statutes.
At the hearing, Petitioner presented the testimony of Andy Snuggs, Enrollment Supervisor with the Division of Retirement; and Jerry A. Scarborough, Clerk of Circuit Court for Suwannee County, Florida; and testified in his own behalf. Petitioner also introduced Petitioner's Exhibits 1 through 3.
Respondent presented the testimony of Mr. Snuggs and that of the Petitioner, Mr. Lewis. It also introduced Respondent's Exhibits A through E.
The parties have submitted posthearing proposed findings of fact pursuant to Section 120.57(1)(b)4, Florida Statutes. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.
The Petitioner, C. DEAN LEWIS, was first employed on March 4, 1966 by the Lafayette County School Board and remained employed by that agency until September 1, 1975. From the time of his employment with that agency, Mr. Lewis was enrolled in the agency retirement system. On September 1, 1975, Petitioner was employed as County Attorney by Suwannee County, Florida. From the time of enrollment in 1966 until such time as the retirement system became non- contributory, sums were withheld from his salary for payment into the retirement fund. When Petitioner became County Attorney for Suwannee County in September 1975, he continued his enrollment in the Florida Retirement System. The evidence presented in the form of enrollment cards fails to show the exact date of enrollment or for what position of employment he was enrolled. However, it is quite clear that Petitioner was enrolled in the Florida Retirement System or its predecessor system continuously since the inception of his employment by a governmental agency.
On July 1, 1979, the Division of Retirement issued new rules regarding membership in the Florida Retirement System contained in Section 22B-1.04(5)(6), Florida Administrative Code. On September 15, 1979, the Division of Retirement promulgated its Memorandum No. 79-20, to all Florida Retirement System reporting agencies outlining the new guidelines for enrollment. This memorandum specifically referred to attorneys and encouraged the agency to examine the employment status of attorneys to determine whether that individual was an employee of the agency or merely a contractor.
Thereafter on February 26, 1981, the Division of Retirement sent out another memorandum, Number 81-38, again to all retirement system reporting units, which placed specific emphasis on those situations involving employees versus consultants/contractors. This situation clearly pertains to the situation of the Petitioner here.
When these memoranda were received by Suwannee County, at least one was inserted in Petitioner's personnel file. At no time, however, was any consideration given to the Petitioner's situation nor was any mention made by the County to the Petitioner regarding these memoranda. In addition, at no time did any representative of the Florida Retirement System or the Division of Retirement have any contact with Petitioner either in person or through correspondence to advise him that his status was under reconsideration and that he had an obligation to clarify his standing to the satisfaction of the Division.
In early 1984 the Division of Retirement forwarded an employment relationship questionnaire to the Suwannee County Board of County Commissioners requesting that it complete the questionnaire as it pertained to Petitioner, the County Attorney. This questionnaire was completed by Jerry A. Scarborough, Clerk of the Circuit Court, who was responsible for maintaining the personnel records of Petitioner and most other county employees.
On the basis of Mr. Scarborough's answers to various questions, the Division of Retirement on May 14, 1984, advised Petitioner of its intention to disenroll him from the Florida Retirement System. The Division listed some seven areas wherein Mr. Scarborough's answers indicated that Petitioner was a "consultant or other professional person" as defined in Rule 22B-6.01(12), rather than a true employee of the county. As such, Mr. Tom F. Wooten, Chief, Bureau of Enrollment and Contributions, Division of Retirement, concluded that Petitioner was, therefore, not eligible to participate as a member of the Florida Retirement System. Mr. Wooten further indicated the Division's intent to remove him from membership as of July 1, 1979. Thereafter, as was stated previously, on July 6, 1984, Mr. A. J. McMullian, III, State Retirement Director, by letter, advised Petitioner that he had considered his response to the original letter of intent but nonetheless, continued to conclude that he was not eligible to participate as a member of the Florida Retirement System. The July 6, 1984 letter by Mr. McMullian indicated the finality of the Division's decision. It is not now the Division's intention to disenroll Petitioner from the Florida Retirement System effective in 1979. Based on a recent decision of the Florida District Court of Appeals, the Division recognizes that it can reasonably disenroll him no earlier than the date he was first advised of the Division's concern regarding his status. That date is May 14, 1984, the date of the Division's initial letter of intent.
The decision by the Division of Retirement to remove Petitioner and other professional contractors from the retirement system is based on its contention that the Petitioner and these other individuals are not bona fide employees of the agency under whose auspices they are enrolled in the system.
It is not the position of the Division that only full-time employees can be enrolled. To the contrary, the agency is quite willing to accept that part-time employees are eligible for enrollment providing they meet the other criteria.
With regard to the Petitioner and other professionals, primarily attorneys and physicians, it is the Division's contention that they are not true employees of the county but are independent-contractors or consultants who are not eligible for membership in the system.
The factors leading to the conclusion drawn by the Division include such things as:
Petitioner was not trained or schooled by the county in the professional work he performs;
That he is not given instructions as to how the work is to be
done;
That he is not required to maintain regular office hours
established by the county;
That the county does not provide him with materials, tools, or equipment to perform his duties;
That he is available to provide identical professional services to others in the county and in furtherance of that pursuit, maintains a business listing in the telephone book, and a trade journal to that effect as well as maintaining a private office for the practice of his profession;
That he hires, pays, and supervises assistants who assist him in the performance of his law firm duties as well as those duties performed for the county; and
That he is not eligible for annual or sick leave from the county.
The Petitioner is hired by the county to advise the Board of County Commissioners, constitutional officers, and citizens of the county having business with the county referred to him by the Board. His private law firm also does additional work for the county in other areas for which it is compensated independently. Petitioner's yearly salary, which was recently increased from $6,000.00 to $8,000.00 per year is related solely to his performance of duties as county attorney. In that capacity he does not get involved in the county's litigation. His firm, as well as other firms in the area, is hired by the county separately for that function. Petitioner vehemently denies that any partner of his or any employee substituted or acted for him at meetings of the Board of County Commissioners in his capacity as county attorney. Whenever such partners or employees addressed the Board, they did so on work they were doing for the firm separately from that related to his position as county attorney. Petitioner contends that he spends an average of
10 hours per month on county business of which 80 percent is accomplished at the county courthouse. In addition to these 10 hours per month, citizens of the county, the press, and county officials contact him at home and at other places at all hours of the day and night regarding county business. He is not furnished an office in the county courthouse or any other county building. Though he contended that his seat in the county commission room is his office and the place where he accomplished most of his county related work, and though this contention was supported by the Clerk of Court, Mr. Scarborough, it is clear that in reality, Petitioner does not have an office furnished him by the county, and such work as he accomplished on the county's behalf is done primarily in the office of the official requesting it. It is also most likely that substantial correspondence and other clerical work is accomplished for the county by the petitioner in his private office and is accomplished by his own law firm employees.
The county supplies him with some books and manuals including copies of various ordinances, codes, and attorney general opinions. The outside work which he does for the county, including, for example, such things as plat examinations, is billed to the county at a rate of $75.00 per hour. The amount he receives, however, never exceeds the amount received by the county for this service.
In 1975, prior to his becoming county attorney, he discussed the potential for assuming this position with his predecessor and law partner, Mr. Airth. One of the major factors convincing him to accept the position of county attorney was the prospective retirement benefits he could expect after fulfilling a number of years in this job. Petitioner was hired by the County Commission on an oral contract basis and has never had a written contract with the county. At the first commissioner's meeting of each year, the Board considers Petitioner's continued relationship with the county and confirms it. It could, at any time, decline to extend the relationship, though it has not yet done so. This arrangement differs from that of a normal consultant in that the relationship with a relationship is terminated automatically when the specific job for which the individual is hired has been completed. Petitioner's relationship has been continuous since 1975 and at the present time there appears to be no indication that it will be terminated in the foreseeable future. His compensation is reported to the Internal Revenue Service on a form
W-2. That which was submitted for the year 1983 reflects that social security taxes were withheld but no federal income tax. Petitioner explains this on the basis that he claims four dependents and that, therefore, no tax should have been withheld. This explanation is questionable at best.
Petitioner takes exception to several of the answers by Mr. Scarborough on the questionnaire submitted to the Division of Retirement. For example, at question 4b, Petitioner contends that he does in fact attend regularly scheduled meetings of the Board of County Commissioners and other agencies and is, therefore, required to follow daily routines. He contends that he is given the specific work which has to be done and the time in which it is to be accomplished and is, therefore, instructed as to how the work is `to be done by his employer. He contends that this same relationship makes him no different than any other county agency or section director who have authority to accomplish their work with some latitude and discretion. Petitioner also contends that he was hired for one year, not an indefinite period, though he has continued to work since 1975 and anticipates no change in his relationship in the future. He contends that the requirement to attend meetings on definite dates at certain times, which takes up to 60 to 80 percent of his time on the job, constitutes the fixed hours and certain times mentioned in the questionnaire. Further, he indicates that with regard to the determination of the hours when the work should be performed, this decision is made not by the employee as indicated on the questionnaire, but by his employer, the county.
Petitioner also contends that such help as he utilizes in performing county business is received from public employees, not from his own law firm employees, and that most of his work is done in the courthouse. While Petitioner does not earn annual leave, sick pay, bonuses, or other benefits, he has been enrolled in the retirement system, was eligible to purchase county insurance, and was carried as any other employee on the county's workers' compensation policy. He is authorized to miss one commission meeting per year for vacation and others during the year as excused for illness.
Taken in its totality, it becomes obvious that Petitioner's relationship with Suwannee County, Florida is little different from that of any other attorney-client relationship of long standing. It is clear that Petitioner's relationship with the county, though it may have been intended since May, 1984 to fall within the guidelines set forth by Use Division of Retirement, did not do so from 1975 to the latter date. It is clear that the Petitioner's primary employment was that of a private practitioner. One of his clients, and perhaps his largest client in terms of population, is Suwannee County, but the relationship is that of attorney-client, not that of employer- employee. While Petitioner no doubt is the Suwannee County Attorney, he performs that function as a private practitioner and not as a member of the county work force even though his salary is paid from the general salary and wages account.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.
The basic issue in this case relates to the status of the Petitioner in his employee relationship with Suwannee County.
Rule 225-6.01(12), Florida Administrative Code, states as follows:
Consultant or Other Professional Person means 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 Professional Person usually is compen- sated 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.
In the instant case, it becomes clear that while Petitioner meets some of the criteria for an employee, he equally meets those for a consultant or other professional person. He is given a job to do as County Attorney and is, primarily, left alone to accomplish it to the best of his ability. He need not perform within strict parameters but is, in fact, a professional who renders advice and a service more than he performs duties for his employer. He is advisor to the Board of County Commissioners; he is advisor to other governmental agencies and constitutional officers and he answers questions for government officials and citizens referred to him by the Board. He does not earn sick leave or annual paid vacation. He does not have set hours in the strict sense of the word and need not perform any set number of hours in order to earn his compensation. It is true that he must attend Board meetings when they are called, but this type of requirement is not the type of requirement considered to be routine hours as mentioned previously.
It having been concluded, therefore, that Petitioner is a consultant or other professional person on contract, he is not eligible for membership in the Florida Retirement System under the provisions of Rule 22B-1.04(6)(b)(2) and (b)(e)6. However, it is also clear that Petitioner relied on his status as a member of the Florida Retirement System until May 14, 1984 and in so doing, passed up other alternatives to provide equally for his retirement. It is also true that the Division made no reasonable effort to contact him, regarding his status but instead relied on the agency for which he was performing services to make contact and advise him of the tenuous nature of his circumstances. On the basis of this factor, it would be inequitable and improper to backdate his disenrollment to 1979.
