STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
TILDON H. DAVIS, )
)
Petitioner, )
)
vs. ) CASE NO. 90-0036
) DEPARTMENT OF ADMINISTRATION) DIVISION OF RETIREMENT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on April 5, 1990.
APPEARANCES
For Petitioner: John D. Carlson, Esquire
1709-D Mahan Drive Tallahassee, Florida 32308
For Respondent: Burton Michaels, Esquire
2639 N. Monroe Street, Building C Tallahassee, Florida 32303
STATEMENT OF THE ISSUES
The issue addressed in this proceeding is whether Petitioner is entitled to retain retirement benefits received by him during the time periods May 19, 1983, through December 31, 1983; May 18, 1984, through December 31, 1984; and May 17,
1985 through June 30, 1985.
PRELIMINARY STATEMENT
By letter dated November 27, 1989, Respondent, Department of Administration, Division of Retirement, notified Petitioner that he was overpaid retirement benefits for the time periods of May 19, 1983, through December 31, 1983; May 18, 1984, through December 31, 1984; and May 17, 1985 through June 30, 1985 because he exceeded the number of hours a retiree could be employed by a Florida Retirement System participant after retirement. Petitioner, Dr. Tildon
Davis, disagreed with the amount of the overpayment and filed a petition for an administrative hearing. The petition was forwarded to the Division of Administrative Hearings. At the hearing, Petitioner testified in his own behalf and offered into evidence four exhibits. Respondent called two witnesses to testify and offered into evidence 16 exhibits. The parties jointly submitted into evidence the amount of retirement benefits of Petitioner and the deposition testimony of James H. Cason, III, Shirley Kirby, Billy R. Foister, Monette Shaw, William R. Pate and Earl Moon.
Petitioner and Respondent timely filed Proposed Recommended Orders on June 27, 1990, and June 26, 1990, respectively. The parties' Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative, or subordinate. Specific rulings on the parties' Proposed Findings of Fact are contained in the Appendix to this Recommended Order.
FINDINGS OF FACT
In 1983-1985, Section 121.091(9)(b)1., Florida Statutes stated: Any person who is retired under this chapter,
except under the disability retirement
provisions of subsection (4), may be employed by an employer that participates in a
state-administered retirement system and receive compensation from such employment and retirement benefits at the same time, so long as the employment does not exceed 780 hours each calendar year, or the compensation earned in such employment does not exceed $4,000 each calendar year, whichever limitation permits
the longer employment. However, such limitation does not apply to a person age 65 or older. [Emphasis supplied].
During the periods of time at issue in this proceeding, a participating agency that re-employed a retired individual did not make pension contributions on behalf of the re-employed person to the Division of Retirement. In the same vein, the individual that retired and then was re-employed by a member agency did not receive enhanced retirement benefits by virtue of the re-employment. Under the statute, a retired individual could work for an employer that was not a participating agency within the Florida Retirement System and would not have been subject to forfeiture. Similarly, a retired individual was not subject to the 780 hour re-employment limitation and forfeiture if he was an independent contractor rendering services to a participating agency. The 780 hour re- employment limitation of Section 121.091(9)(b)1. was repealed on July 1, 1985.
Petitioner, Dr. Tildon H. Davis, is a member of the Florida Retirement System. He retired from the Indian River County School District on June 30, 1982. The Indian River District participates in the Florida Retirement System. He had been employed as the District's finance officer. Upon retirement, Petitioner began receiving retirement benefits from the Florida Retirement System.
After Dr. Davis retired, Petitioner was employed by the Union County School District on November 10, 1982. Petitioner was employed as the District's finance officer. Until his employment, Petitioner had never worked for the Union County School District. Because Dr. Davis had already retired from the Indian River District, the Union County School District has never paid any retirement benefits to the Florida Retirement System on Petitioner's behalf.
The Division was notified of Dr. Davis' employment shortly after he was employed by the District in 1982. Such notice was given at most monthly to the Division and included the amount of time worked by Petitioner.
Originally, Petitioner was employed as a regular employee of the school district under a standard contract of employment. However, due to the fact that Dr. Davis wished to control his work schedule so that he could spend more time with his family at his home in Vero Beach and because Dr. Davis wanted to offer his financial expertise to other School Districts, on July 1, 1983, the school district entered into a contract with Petitioner as an independent contractor.
The term of the contract was July 1, 1983 through October 31, 1984. During the term of this contract Petitioner did not receive the usual employee fringe benefits as he would have if he had been employed. There was no annual or sick leave granted to Dr. Davis and no health or worker's compensation benefits extended to Dr. Davis. Also because Petitioner was an independent contractor, the school district did not withhold any wages for income taxes on Petitioner's fees and did not pay any social security on Petitioner's fees. Petitioner set his own work schedule and could accomplish his work at a location of his choice. Petitioner, in fact, was making an attempt to gain another school district's business during the time of his independent contractor status. Petitioner was not subject to control or review by any superior except as to the results of his work. Petitioner's fee was not paid from the District's regular payroll account, but from an account used to pay for contracted services. His fees were paid based on a monthly invoice which he submitted to the school district. There was no evidence which would demonstrate that this contractual arrangement was collusive between Petitioner and the school district. Since Petitioner was an independent contractor from July 1, 1983 through October 31, 1984, he is entitled to return the retirement benefits received by him during that period of time.
After October 31, 1984, Petitioner was again employed as a regular employee by the school district. Dr. Davis was required to and did execute a loyalty oath, a W-4 form, a Florida Retirement System form FR-10 and a regular contract of employment. Dr. Davis became eligible for and did thereafter receive benefits of employment which he was not eligible to receive as an independent contract. Dr. Davis remained in the employment of the Union County School Board through June 30, 1987.
In summary, Petitioner was a regular employee of the District from June 30, 1982 through June 30, 1983 and November 1, 1984 through June 30, 1987. Petitioner was an independent contractor from July 1, 1983 through October 31, 1984.
Petitioner did not exceed the 780 hour employment limitation in 1982. Likewise, Petitioner did not exceed the 780 hour limitation in 1984 since the limitation was not applicable to him for the bulk of 1984. Therefore, the only time periods for which Dr. Davis may have been overpaid retirement benefit are January 1, 1983 through June 30, 1983 and January 1, 1985 through June 30, 1985. During these periods of employment as a regular employee, Petitioner worked the following hours per month based on the 37 1/2 hour work week utilized by the District:
1 - 83 | 21 days | 37 1/2 hrs x 4.33 | 162.38 |
2 - 83 | 20 days | 37 1/2 hrs x 4.33 | 162.38 |
3 - 83 | 23 days | 37 1/2 hrs x 4.33 | 162.38 |
4 - 83 | 21 days | 37 1/2 hrs x 4.33 | 162.38 |
5 - 83 | 22 days | 37 1/2 hrs x 4.33 | 162.38 |
6 - 83 | 22 days | 37 1/2 hrs x 4.33 | 162.38 |
Total | 974.28 |
1 - 85 | 21 days | 37 1/2 hrs | x 4.33 | 162.38 |
2 - 85 | 20 days | 37 1/2 hrs | x 4.33 | 162.38 |
3 - 85 | 23 days | 37 1/2 hrs | x 4.33 | 162.38 |
4 - 85 | 21 days | 37 1/2 hrs | x 4.33 | 162.38 |
5 - 85 | 22 days | 37 1/2 hrs | x 4.33 | 162.38 |
6 - 85 | 22 days | 37 1/2 hrs | x 4.33 | 162.38 |
Total | 974.28 |
Clearly Dr. Davis exceeded the 780 hour limitation in 1983 and 1985 for the periods of May 25, 1983 through June 30, 1983; and May 25, 1985 through June 30, 1985. In 1983, Dr. Davis received $1199.56 a month in retirement benefits. In 1985, Dr. Davis received $1267.90 a month in retirement benefits. Since the time periods during which Dr. Davis exceeded the 780 hour limitation include only a part of the month of May, Dr. Davis is entitled to have that month's benefit pro-rated in order to determine the amount of overpayment. Therefore, Dr. Davis was overpaid his retirement benefits for May, 1983, in the amount of $270.90 ($38.70 per day x 7 days) and for May, 1985, in the amount of
$286.30 ($40.90 per day x 7 days). For May and June, 1983, Dr. Davis was overpaid $1470.46. For May and June, 1985, Dr. Davis was overpaid $1554.20. Dr. Davis, therefore owes the Florida Retirement System $3,024.66.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).
The Respondent initially had the burden of proof to establish by a preponderance of the evidence that a regular employee/employer relationship existed between the Petitioner and the Union County School Board, that the Petitioner was compensated for those services performed and that Petitioner's hours of employment exceeded the 780 hour limitation established in Section 121.091(9)(b)1., Florida Statutes, during the time periods of May 19, 1983, through December 31, 1983; May 18, 1984, through December 31, 1984; and May 17, 1985 through June 30, 1985. Respondent has proven by a preponderance of the evidence that such a work relationship did exist for the time periods of June 30, 1982 through June 30, 1983 and November 1, 1984 through June 30, 1987. However, the Petitioner demonstrated by a preponderance of the evidence that the relationship between the Petitioner and the Union County School Board was that of an independent contractor during the period of July 1, 1983 through October 31, 1984.
The evidence was clear that Dr. Davis did not exceed the 780 hour limitaton in 1982 or 1984. Therefore, he does not owe the Department any overage on the retirement benefits he received during 1982 and 1984. However, Dr. Davis did exceed the 780 hour limitation during 1983 and 1985. For May and June, 1983, Dr. Davis was overpaid $1470.46. For May and June, 1985, Dr. Davis was overpaid $1554.20. Dr. Davis, therefore, owes the Florida Retirement System
$3,024.66. 1/
It is accordingly, RECOMMENDED:
That the Division enter a Final Order finding that Petitioner was overpaid retirement benefits for the time periods of May 25, 1985 through June 30, 1985, in the amount of $3024.66.
DONE and ORDERED this 31st day of August, 1990, in Tallahassee, Florida.
DIANE CLEAVINGER
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1990.
ENDNOTES
1/ Petitioner did raise the defense that the Division's claim is barred by the statute of limitations and/or laches. However, neither of these doctrines is applicable to the State.
APPENDIX TO CASE NO. 90-0036
The facts contained in paragraphs 1, 2, 3, 6, 7, 10 and 11 of Petitioner's Proposed Findings of Fact are adopted in substance, insofar as material.
The facts contained in paragraphs 4, 5 and 8 of Petitioner's Proposed Findings of Fact are subordinate.
The facts contained in paragraph 9 of Petitioner's Proposed Findings of Fact are immaterial.
The facts contained in paragraphs 1 and 3 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material.
The facts contained in paragraph 2 of Respondent's Proposed Findings of Fact were not shown by the evidence.
The fact contained in paragraphs 6, 7, and 8 of Respondent's Proposed Findings of Fact were not shown by the evidence.
The facts contained in paragraph 4 of Respondent's Proposed Findings of Fact are subordinate except for the first sentence which facts were not shown by the evidence.
The facts contained in paragraph 5 of Respondent's Proposed Findings of Fact are subordinate except for the first sentence which facts were not shown by the evidence and the last clause of the third sentence which fact was not shown by the evidence. None of the evidence referenced by Respondent was overwhelming.
COPIES FURNISHED:
John D. Carlson, Esquire 1709-D Mahan Drive Tallahassee, Florida 32308
Burton Michaels, Esquire Division of Retirement
2639 N. Monroe Street, Building C Tallahassee, Florida 32303
Aletta Shutes Secretary
Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
Augustus D. Aikens, Jr., Esquire Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION
DIVISION OF RETIREMENT
TILDON H. DAVIS,
Petitioner,
vs. Division of Retirement
Case No. DR89-26 DEPARTMENT OF ADMINISTRATION, (DOAH Case No. 90-36) DIVISION OF RETIREMENT,
Respondent.
/
FINAL ORDER
On August 31, 1990, the duly appointed Hearing Officer of the Division of Administrative Hearings in the above-styled and numbered cause, completed and submitted to the Division of Retirement of the Department of Administration and to all parties in this cause, a Recommended Order. A copy of that Recommended
Order is attached hereto, incorporated by reference herein, and made a part hereof as EXHIBIT "A".
Pursuant to Rule 28-5.404, Florida Administrative Code, and Section 120.57(1) (b)8, Florida Statutes, the parties were allowed twenty (20) days within which to submit written exceptions to that Recommended Order. Neither the Petitioner nor the Respondent submitted any written exceptions. Pursuant to Section 120.57(1) (b), Florida Statutes, that Recommended Order came before the undersigned Director of the Division of Retirement, an agency head, for final agency action and for a final agency order in this cause.
The Record in this cause consists of all documents filed in this cause either with the Hearing Officer or with the Division of Retirement, including all documents received in evidence at the hearing as exhibits (referred to herein as "Exhibit ") and a written transcript (295 pages) of the April 5, 1990, hearing, certified by the court reporter on October 1, 1990.
SUMMARY OF FINAL ORDER
The issue in this case was whether or not the Petitioner, Tildon H. Davis, was employed in excess of 780-hours during each of the calendar years 1983, 1984, and 1985, in violation of Section 121.091(9) (b), Florida Statutes, from January 1, 1983, through June 30, 1985, so as to result in the Petitioner having to reimburse the Florida Retirement System Trust Fund for the retirement benefits he received during each of those calendar years after he had reached the 780-hour limitation imposed by that statute prior to July 1, 1985.
The Petitioner served as Finance Director for the Union County, Florida, School Board from November 1, 1982, until some time in 1987 after having retired under the Florida Retirement System effective July 1, 1982. Under the provisions of Section 121.091(9) (b), Florida Statutes, in effect at that time, a retiree under the Florida Retirement System was permitted to be employed in a position covered by the Florida Retirement System so long as such covered employment did not exceed 780-hours during a calendar year, or the compensation earned did not exceed $4,000 during that calendar year, whichever limitation permitted the longer employment.
The Petitioner admitted at the final hearing that his position as Finance Director was as an employee under the Florida Retirement System from November 1, 1982, through June 30, 1983 and then again from November 1, 1984, through June 30, 1985, but he asserted that he was an independent contractor from July 1, 1983, through October 31, 1984.
In Cantor v. Cochran, 184 So.2d 173 (Fla. 1966), the Supreme Court of Florida pronounced the guidelines in determining whether or not a work relationship results in one being an employee or an independent contractor. At page 174 of 184 Southern 2d the Florida Supreme Court held that "such status depends not on the statements of the parties but upon all the circumstances of their dealings with each other." Thus, under Cantor v. Cochran, such statements of the parties do not constitute competent evidence; and in this Final Order it has been found and held that the recommended finding of the Hearing Officer that the Petitioner was an independent contractor, is supported only by such statements of the parties, which is not competent evidence. From an examination of the entire record, all of the evidence is, without contradiction, that the Petitioner during the entire period of time from November 1, 1982, through some time in 1987, continuously performed the same duties and responsibilities as Finance Director without any changes occurring during the period in question
from July 1, 1983, through October 31, 1984. So too, the method by which the parties arranged his compensation during that period of time (from other than a salary fund) and to not provide certain fringe benefits provided to the employees, would fall into the same category as "statements of the parties" under Cantor v. Cochran.
The Petitioner occupied the position of Finance Director of the School Board in which he was in the chain of command at all times and an integral part of the organizational structure. Most importantly, his predecessor and successor in office were both employees of the School Board and were covered under the Florida Retirement System.
Inasmuch as the Petitioner exceeded the 780-hours of work limitations in each of the calendar years 1983, 1984, and 1985, the Petitioner is obligated to pay to the Division of Retirement the retirement benefits that he received after he had exceeded said 780-hour limitation during calendar years 1983 and 1984 and for the period that he exceeded such limitation up through June 30, 1985. The Petitioner is indebted to the Division of Retirement in a total aggregate amount of $20,324.40 for retirement benefits which he received during those calendar years after he had exceeded the 780-hour limitation.
FINDINGS OF FACT
After having considered the recommended Findings of Fact in the attached Recommended Order together with a review of the entire record in this cause, including said transcript of the hearing, the Division of Retirement hereby enters its Findings of Fact and hereby rules upon each of the Findings of Fact set forth in the attached Recommended Order.
Recommended Finding of Fact No. 1 more properly should have been included in the recommended Conclusions of Law. A more accurate statement as to the quoted statutory provisions would have been that from prior to November 1, 1982, through June 30, 1985, Section 121.091(9)(b)1., Florida Statutes, read as quoted. Furthermore, it should have been emphasized that the 780 hour limitation applied to a calendar year contrary to most statutory proscriptions and other limitations which are on a fiscal year basis from July 1 of one year through June 30 of the following year. Subject to the above corrections, the quoted provisions of said statute are hereby accepted.
Recommended Finding of Fact No. 2 similarly would have been more appropriate in the recommended Conclusions of Law. More seriously, none of the statements contain in recommended Finding of Fact No. 2 are of any relevancy to any of the issues in the cause. The nerve center of this case is whether or not the Petitioner, Tildon H. Davis, was an employee or an independent contractor of the Union County, Florida, School Board during the period from November 1, 1982, through June 30, 1985. The first sentence of the recommended Finding of Fact No. 2 addresses "contributions" which are not an issue in this cause. Furthermore, there is no issue as to whether or not the Petitioner did or did not receive any enhanced retirement benefits by virtue of his employment, as addressed in the second sentence. In the third sentence, as to whether or not a retired individual could work for a private employer or other public employer not under the Florida Retirement System is totally irrelevant to this cause. The next sentence comes closer to the central issue as to whether or not the Petitioner was an employee or independent contractor, but an independent contractor is not "employed". And the last sentence, as to the repeal of the 780-hour reemployment limitation, is totally outside of the time-frame of this case: November 1, 1982, through June 30, 1985.
Recommended Finding of Fact No. 3 is hereby accepted and adopted in that it is supported by competent substantial evidence. It is further found that the Petitioner, Tildon H. Davis, retired under the Florida Retirement System and began receiving and accepting monthly retirement benefits under that system on or about and after July 1, 1982. It is further found that at all times material and relevant in this proceeding beginning in 1982, the Petitioner knew that as a retiree under the Florida Retirement System that he was permitted to be employed by an employer that participated in a State-administered retirement system, and to receive compensation from such employment, so long as his employment did not exceed 780 hours each calendar year, or the compensation earned in such employment did not exceed $4,000 each calendar year, whichever limitation permitted the longer employment. (Respondent's Exhibit No. 4, Deposition of Tildon H. Davis, taken on March 1, 1990, Page 27).
The first two sentences of recommended Finding of Fact No. 4 are hereby accepted and adopted in that they are supported by competent, substantial evidence. It is further clarified that the period of employment actually began on November 1, 1982. The third sentence is hereby rejected upon the grounds and for the reason that it does not make any sense. Under Chapter 121, Florida Statutes, employers pay contributions on behalf of their employees to the Florida Retirement System Trust Fund; and the Division of Retirement utilizing the resources of the Florida Retirement System Trust Fund pays benefits to beneficiaries of the Florida Retirement System. The last two sentences make statements that are totally irrelevant and immaterial for the following reasons. Section 121.091(9)(b)2., Florida Statutes, expressly and mandatorily placed a notice requirement on any retiree under Chapter 121 during the period from at least November 1, 1982, until June 30, 1985, under the following provision thereof:
"2. Any person to whom the limitation in subparagraph 1. applies who will exceed such limitation shall give timely notice of this fact in writing to his employer and to the Division and shall advise both of the date on which he will exceed the limitation. The division shall suspend such retired person's benefits for the remainder of the calendar year during which he continues employment in excess of the limitations in subparagraph 1.
Whether or not the Division ever received any notice as to the Petitioner's employment during 1982 would be totally irrelevant because there is no claim anywhere in this proceeding that the 780 hour reemployment limitation was exceeded. In fact, it appears affirmatively that the Petitioner was employed for less than 780 hours during the calendar year 1982 during the months of November and December 1982. The law in effect from at least November 1, 1982, though June 30, 1985, placed an affirmative duty on the retiree to notify the Division of Retirement and his employer that the 780-hour limitation was going to be exceeded. At no time during 1983, or during 1984, or during 1985, did the Petitioner, Tildon H. Davis, ever notify the Division of Retirement that he was employed by the School Board of Union County, Florida, in excess of 780 hours during any of those calendar years. It was not until an audit of the Union County School Board by auditors of the Division of Retirement in 1988, that the Division of Retirement first learned in June, 1989, that the Petitioner, Tildon
H. Davis, had exceeded the reemployment limitations of Section 121.091(9), Florida Statutes, for the calendar years 1983 and 1985, in that he was employed
in excess of 780-hours in each of those calendar years. (Testimony of Doug Cherry at Final Hearing, pp. 161-165; Respondent's Exhibit No. 2). And it was during or about the fall of 1989 that the Division of Retirement first learned and determined that the Petitioner, Tildon H. Davis, was employed by the Union County School Board as an employee in a regularly established position between July 1, 1983, and October 31, 1984, thereby not only exceeding said 780-hour reemployment limitation for the calendar year 1984, but in addition thereto said employment resulted in an increase in the number of hours exceeding said limitation during the calendar year 1983, which had theretofore been determined by the Division of Retirement. (Testimony of Doug Cherry at Final Hearing, pp.
173-191; Testimony of Carolyn McGlamery at Final Hearing, pp. 222-244; Respondent's Exhibits No. 1, 2, 13, 14 and 17).
The first sentence of recommended Finding of Fact No. 5 is hereby accepted and adopted in that it is supported by competent substantial evidence that as of November 1, 1982, the Petitioner was employed as an employee of the Union County Florida School Board. Upon the authority of the decision of the Supreme Court of Florida in Cantor v. Cochran, 184 So.2d 173 (Fla. 1966), the remainder of recommended Finding of Fact No. 5, being the second sentence thereof is hereby rejected in that it is not supported by competent, substantial evidence. The uncontradicted evidence from third-persons (other than the Petitioner and the Superintendent of Union County School Board), was that there was no difference whatsoever as to the Petitioner's working relationship with the Union County School Board from November 1, 1982, through June 30, 1985, and thereafter into 1987. In Cantor v. Cochran, supra, the Supreme Court of Florida expressly held that the statements of the parties as to what their relationship was did not constitute competent evidence. The second sentence of recommended Finding of Fact No. 5 is further rejected in that it is based on sheer speculation. There is evidence in the record that it inured to the benefit of the Petitioner to cash in on his unused leave as of June 30, 1983, for a rather substantial amount of money. But, most importantly, under Cantor v. Cochran, supra, there is no competent evidence in the record whatsoever to support the position of the Petitioner that he was an independent contractor from July 1, 1983, through October 31, 1984. During the course of these proceedings that Petitioner finally admitted that he was an employee of the Union County School Board for theperiod from January 1, 1983, through June 30, 1983, and from January 1, 1985, through June 30, 1985, (Testimony of Tildon H. Davis at Final Hearing, p. 59), but in the initial investigation by the Division of Retirement in 1989, the Petitioner vehemently denied that he ever was an employee of the Union County School Board. (Testimony of Doug Cherry at Final Hearing, p. 175). The Petitioner testified that he was well-acquainted with the provision of law that prohibited his receiving retirement benefits after he had completed 780 hours of work in a position covered under the Florida Retirement System. (Testimony of Tildon H. Davis at Final Hearing, pp. 118-120, 125). There can be no question that with the standard workyear being 2080 hours that the period of 780 hours would constitute a little more than a third of a year. The motivation of the Petitioner to attempt to enter into a contractual relationship as an independent contractor so as to prevent the suspension of his retirement benefits for two-thirds of a year appears to be very strong motivation on his part. The Petitioner expressly stated that he was well-versed in this provision of the law, and there could be no question that the strongest motivation possible would have been to preserve his retirement benefits under the Florida Retirement System for those periods of time in which he had exceeded the 780- hour work limitation.
Recommended Finding of Fact No. 6 is hereby rejected in that is it not supported by competent, substantial evidence and is contrary to the Florida Supreme Court decision in Cantor v. Cochran, supra. The recommended findings of the Hearing Officer can be supported only by the statements of the Petitioner and of the Superintendent of the Union County School Board (Depositions of Tildon H. Davis and James H. Cason, III, and Testimony of Tildon H. Davis at Final Hearing, pp. 59 et seq.), and are not based upon the circumstances of the dealings of the parties with each other. The Hearing Officer's recommended Findings of Fact ignore the fact that the position of Finance Director of the school district is a position that has been recognized as being a regularly established position, as evidence by the Petitioner's predecessor and successor, (Deposition of James H. Cason, III, Joint Exhibit No. 2, pp. 30-31) and by periods of his own employment during which he was an acknowledged employee. The Hearing Officer's recommended Findings of Fact No. 6 ignore the fact that the day-to-day activities, and duties and responsibilities of the Petitioner were never different during any of the periods of time that he worked for the Union County School Board (Deposition of James H. Cason, III, Joint Exhibit No. 2, pp. 32-33, deposition of Shirley Kinly, Joint Exhibit No. 3, pp. 13-14; and deposition of Monette Shaw, Joint Exhibit No. 5, pp. 16-18). The Hearing Officer's recommended Findings of Fact No. 6 are based solely upon the statements of the parties and of the control that they exercised as to the method of his receiving compensation. The absence of the Petitioner receiving any fringe benefits is miniscule to the overwhelming evidence that his work activities, duties and responsibilities, supervisory activities, etc., were unchanged during the entire period of time that he served as Finance Officer for the School Board. There is a lackof competent substantial evidence in the record to support the findings of the Hearing officer that the Petitioner was an independent contractor from July 1, 1983, through October 31, 1984.
Recommended Finding of Fact No. 7 is hereby adopted as to the statement that the Petitioner was an employee of the school board after October 31, 1984, inasmuch as there is more than competent, substantial evidence to support that the Petitioner was a regular employee from October 31, 1984 until the termination of his employment in 1987, but the remainder of recommended Finding of Fact No. 7 making reference to his status as an independent contractor is hereby rejected as not being supported by competent, substantial evidence upon the grounds and bases set forth in the Finding of Fact No. 6, above.
Recommended Finding of Fact No. 8 is hereby accepted to the extent that the Hearing officer recognized that the Petitioner was in the employ of the Union County School Board for the periods from November 1, 1982, through June 30, 1983, and from January 1, 1985, through June 30, 1985, but the remainder of the recommended Finding of Fact No. 8 is hereby rejected as being unsupported by competent, substantial evidence, or in that it is not relevant to any of the issues in this cause for the following reasons. The Petitioner was initially employed on November 1, 1982, rather than on June 30, 1982, as set forth in the recommended Finding of Fact No. 8. Furthermore, anything that may have transpired after June 30, 1985, would be outside the time-frame for this cause. And for the reasons and upon the grounds and basis set forth in Finding of Fact No. 6, the recommended finding by the Hearing Officer that the Petitioner was an independent contractor from July 1, 1983 through October 31, 1984, is hereby rejected as not being supported by competent, substantial evidence.
Recommended Finding of Fact No. 9 is hereby rejected in that it is not supported by competent, substantial evidence for the following reasons and upon the following grounds. The only source of the assertion that the workweek at the Union County School Board was 37 1/2 hours during the period in question was
from the Petitioner himself. All other evidence in the record establishes the fact that the employees of the Union County School Board worked an 8-hour day. (Respondent's Exhibit No. 17, p. 2, item 5(b), for example). Furthermore, for the reasons and upon the grounds stated in Finding of Fact No. 6, above, it is hereby rejected that the Petitioner was anything other than an employee during the entire period of time for November 1, 1982, through June 30, 1985.
Recommended Finding of Fact No. 10 is hereby accepted to the extent that it recognizes that for the periods from January 1, 1983, through June 30, 1983, and from January 1, 1985, through June 30, 1985, that the Petitioner exceeded the 780-hour work limitation, but the Hearing Officer's recommended finding that the Petitioner worked less than an 8-hour workday is hereby rejected for the reasons set forth in Finding of Fact No. 9. Furthermore, it is hereby expressly found that respectively as of May 18, 1983, as of May 17, 1984, and as of May 16, 1985, that the Petitioner, Tildon Davis, had completed during that respective calendar year 780 hours of work as an employee of the Union County School Board in a regularly established position covered by the Florida Retirement System during each of those respective calendar years. And it is hereby further found that for the periods from May 19, 1983, through December 31, 1983, from May 18, 1984, through December 31, 1984, and from May 17, 1985, through June 30, 1985, that the Petitioner, Tildon H. Davis, received monthly retirement benefits under the Florida Retirement System in the total, aggregate amount of $20,324.40, which he was not entitled to receive inasmuch as he had been employed by an employer under the Florida Retirement System in excess of 780 hours prior to each of those dates in each of those respective calendar years. The Florida Retirement System Trust Fund is owed the sum of $20,324.40 by the Petitioner, Tildon H. Davis, as of November 27, 1989, as set forth in the Final Agency Action Letter (Respondent's Exhibit No. 1), as retirement benefits which he received during 1983, 1984, and 1985, after he had been employed in excess of 780 hours as aforesaid.
RULINGS ON PROPOSED FINDINGS OF FACT
On June 26 and 27, 1990, respectively, the Respondent and the Petitioner submitted to the Hearing Officer their proposed Findings of Fact. In the Appendix to the Recommended Order the Hearing Officer submitted recommended rulings thereon. The following constitutes the rulings in this Final Order on those proposed Findings of Fact.
The Petitioner's proposed Findings of Fact Nos. 1, 2, and 3 are hereby accepted and adopted in that they are supported by competent, substantial evidence.
The Petitioner's proposed Finding of Fact No. 4 is hereby rejected as an ultimate finding of fact in that it a recitation of isolated bits and pieces of testimony of witnesses, and it is not proper as an ultimate finding of fact.
The Petitioner's proposed Finding of Fact No. 5 is hereby rejected upon the authority of Cantor v. Cochran, 184 So.2d 173 (Fla.), in that it is based upon statements of the parties as to the working relationship, which under the Cantor case is not competent evidence.
The Petitioner's proposed Finding of Fact No. 6 is hereby rejected upon the grounds and for the reason stated in Paragraph No. 3.
The Petitioner's proposed Finding of Fact No. 7 is accepted to the extent that on November 1, 1984, the Petitioner was an employee of the Union County School Board, and continued as such through June 30, 1987, but the remainder of that proposed Finding of Fact No. 7 is hereby rejected in that it is based on the statements and arrangements of the parties, which, based upon the Cantor case do not constitute competent evidence.
The Petitioner's proposed Findings of Fact Nos. 8, 9, and 11, are hereby rejected in that each of them is ambiguous, irrelevant, not based upon any competent substantial evidence in the record, and do not serve to either prove or disapprove any of the issues in this cause.
The Petitioner's proposed Finding of Fact No. 10, is hereby rejected in that is erroneous as to the dates in question and as to the number of hours in the School Board workweek. The dates in 1983, 1984, and 1985, during which the Petitioner's retirement benefits had been suspended because of exceeding the
780-hour work limitation were as follows: May 19, 1983, through December 31, 1983; May 18, 1984, through December 31, 1984; and May 17, 1985, through June
30, 1985.
The Respondent's proposed Finding of Fact Nos. 1 through 8 are each hereby accepted and adopted in that they are each based upon competent, substantial evidence.
CONCLUSIONS OF LAW
The Division of Retirement has jurisdiction over the parties to, and the subject matter, of this proceeding. Section 120.57(1), Florida Statutes.
Any party that asserts the affirmative of an issue has the burden of proof to establish same by a preponderance of the evidence. Wilson v. Department of Administration, Division of Retirement, 538 So2d. 139 (Fla. 4th DCA 1989), and Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412, 414 (Fla. 4th DCA 1974).
The main issues in this proceeding are whether or not the Petitioner, Tildon H. Davis, a retiree under the Florida Retirement System since July 1, 1982, exceeded the 780-hour reemployment limitation during each of the calendar years 1983, 1984, and 1985, thereby suspending his retirement benefits as provided in Section 121.091(9), Florida Statutes (1983), (as those provisions of law read during the period from prior to January 1, 1983 through June 30, 1985). The Petitioner admittedly was employed as an employee of the Union County School Board from January 1, 1983, through June 30, 1983, and from November 1, 1984, through June 30, 1985. The Respondent initially had the burden of proof to establish that a work relationship existed between the Petitioner and the Union County School Board where under the Petitioner was compensated for services performed during the period from July 1, 1983, through October 31, 1984. It is hereby held that the Respondent has proven by a preponderance of the evidence that such work relationship did exist. The burden of proof then shifted to the Petitioner to show by a preponderance of the evidence that the relationship between the Petitioner and the Union County School Board was that of an independent contractor. It is hereby held that the Petitioner has failed to prove by even competent, substantial evidence that his relationship with the Union County School Board between July 1, 1983, and October 31, 1984, was as an independent contractor. The Petitioner admittedly was an employee of said School Board from November 1, 1982, through June 30, 1983, and from November 1, 1984, through June 30, 1985, and thereafter until his employment terminated.
Other than the Petitioner and the Superintendent of the School Board asserting that the Petitioner was an independent contractor, and other than the fact that he was paid for his services from a fund other than the salary fund, there is no other evidence in the record whatsoever to indicate that he was doing anything different, or that his duties and responsibilities were any different, than during the stated periods of time when he was admittedly working as an employee for the school board. In addition, the uncontroverted evidence in the record is that both his predecessor and his successor as Director of Finance were each an employee of the School Board of Union County in a regularly established position of covered employment under the Florida Retirement System.
The landmark case of Cantor v. Cochran, 184 So.2d 173 (Fla. 1966), decided by the Supreme Court of Florida in 1966, is controlling in any determination as to whether the relationship of an individual who performs services for another is as an independent contractor or as an employee. At page
174 of 184 So.2d the Supreme Court expressly held that a document signed by an individual that his work was that of an independent contractor:
While the obvious purpose to be accomplished by this document was to evince an independent contractor status, such status depends not on the statements of the parties but upon all the circumstances of their dealings with each other. Magarian v. Southern Fruit Distributors, 1941, 146 Fla. 773, 1 So.2d 858."
In Cantor v. Cochran, supra, the Supreme Court of Florida expressly approved the tests formulated in the Restatement of the Law, Agency, in determining whether an employer-employee relationship exists. The Supreme Court then set out the tests as found in the Restatement, and following each set forth the appropriate facts established in that case below. Beginning of page 174 of 184 Southern Second, the Court recites each of those tests. Applying those tests to the case at bar clearly discloses that the Petitioner, Tildon H. Davis, was an employee of the Union County School Board during the entire period of their work relationship from November, 1982, until at least June 30, 1985. The extent of control that the School Board had over the details of his work was as dictated by State law and other applicable rules and regulations; the Petitioner, Tildon
H. Davis, was not engaged in any distinct occupation or business inasmuch as at all times that his work relationship was with the Union County School Board, it was his sole source of income forhis services as a finance director; the Union County School Board supplied all of the instrumentalities, tools, and the place of work for the Petitioner, Tildon H. Davis, during the entire time that he performed services on behalf of the School Board; the length of time for which the Petitioner was admittedly employed was from November, 1982, until sometime in 1987, with the exception of his claim that he was an independent contractor only between July 1, 1983, and October 31, 1984; the method by which the Petitioner was paid was on a monthly basis and he never was compensated on the basis of any specific job; the work that the Petitioner performed on behalf of the Union County School Board was a part of the regular activities of the School Board in that it is was required to have a finance director or similar such position; whether or not the parties believed that they were creating the relation of master and servant depended, according to the Petitioner, as to the point in time between 1982 and 1987; and whether or not the Union County School Board was or was not in business, it was, of course in the public business. A review of all of these factors clearly indicates that the Petitioner, Tildon H. Davis, was an employee of the Union County School Board for the entire period of time from November 1, 1982, through June 30, 1985, under the Cantor v. Cochran rulings.
Section 121.091(9)(b), Florida Statutes (1983), which was in effect from November 1, 1982, through June 30, 1985, provided in part:
"(9) EMPLOYMENT AFTER RETIREMENT; LIMITATION.--
"(b)1. Any person who is retired under this chapter, except under the disability retirement provisions of subsection (4), may be employed by an employer that participates in a state-administered retirement system and receive compensation from such employment and retirement benefits at the same time, so long as the employment does not exceed 780 hours each calendar year, or the compensation earned in such employment does not exceed $4,000 each calendar year, whichever limitation permits the longer employment. However, such limitations does not apply to a person age 65 or older.
"2. Any person to whom the limitation in subparagraph
applies who will exceed such limitation shall give timely notice of this fact in writing to his employer and to the division and shall advise both of the date on which he will exceed the limitation. The division shall suspend such retired person's benefits for the remainder of the calendar year during which he continues employment in excess of the limitation in
subparagraph 1. . .
It is hereby held that there is no evidence in the record whatsoever that the Petitioner, Tildon H. Davis, at any time fulfilled his statutory obligation to give timely notice of the fact in writing to the Union County School Board and to the Division of Retirement, that as of May 19, 1983, and that as of May 18, 1984, and that as of May 17, 1985, that he had exceeded the 780-hour of work statutory limitations in those respective calendar years. Though there is evidence scattered through the record that the Petitioner, Tildon H. Davis, may have been reported to have commenced employment as of November, 1982, such notice would have been meaningless as to 1982 in which calendar year he did not exceed the 780-hour limitation. The retirement benefits that the Division of Retirement paid to the Petitioner for the periods from May 19, 1983, through December 31, 1983; from May 18, 1984, through December 31, 1984; and from May 17, 1985, through June 30, 1985, were paid by mistake by the Division of Retirement in that it had no notice or knowledge that the Petitioner had exceeded said 780-hour of employment limitation in those respective calendar years. Upon the authority of First State Bank of Fort Meade v. Singletary, 124 Fla. 770, 169 So. 407 (1936), and Ferguson v. Cotler, 382 So.2d 1315 (Fla. 5th DCA 1980), any statute of limitations relating to said payment of retirement benefits by mistake did not start to run until June, 1989, when the Division of Retirement first discovered, as a result of an audit of the Union County School Board, that the Petitioner had exceeded the 780-hour reemployment limitation during 1983 and 1985. And subsequently on further examination, the Division of Retirement discovered that the Petitioner had, in fact, been continuously employed by the Union County School Board in a regularly established position from November 1, 1982, through June 30, 1985. The Petitioner cited no particular statute of limitations in paragraph 13. of his Petition, and never alleged that the equitable doctrine of laches applied. Neither is applicable to the case at bar.
It is hereby held that the Petitioner, Tildon H. Davis, was not entitled to the retirement benefit payments paid to him from May 19, 1983, through December 31, 1983; from May 18, 1984, through December 31, 1984; and from May 17, 1985, through June 30, 1985, in that those payments were made subsequent to his exceeding of the 780 hour per calendar year reemployment limitation provided for in Section 121.091(9)(b), Florida Statute (1983), as quoted above. It is therefore held that the Petitioner's retirement benefits during those periods in question should have been suspended, pursuant to notice from the Petitioner, which had never been given, and that he is indebted to the Division of Retirement in the aggregate amount of $20,324.40. In Martin v. Williams, 364 So.2d 549 (Fla. 1st DCA 1978), the First District Court of Appeal upheld similar statutory provisions suspending retirement benefits upon the reemployment of a retiree under a State-administered retirement system.
ORDER
Based upon the above Findings of Fact and Conclusions of Law it is, ORDERED AND DIRECTED that the Petition of the Petitioner, Tildon H. Davis,
be and the same is hereby DISMISSED. And it is,
FURTHER ORDERED AND DIRECTED that his retirement benefits under the Florida Retirement System shall be suspended until he has reimbursed the Florida Retirement System Trust Fund the sum of $20,324.40 for overpayments made during 1983, 1984 and 1985 as set forth above.
DONE AND ORDERED this 30th day of November , 1990, in Tallahassee, Florida.
A. J. MCMULLIAN III
State Retirement Director Division of Retirement Cedars Executive Center 2639 North Monroe Street
Tallahassee, Florida 32399-1560
(904) 487-1230
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF RETIREMENT, AND A SECOND COPY, ACCOMPANIED BY FILING FEES DESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
CLERK'S CERTIFICATE
I HEREBY CERTIFY that this Final Order was filed with the Clerk of the Division of Retirement on this 30th day of November, 1990. And on this same date, copies were furnished to the following as noted respectively: John
D. Carlson, Esquire, Gatlin, Woods, Carlson & Cowdery, 1709-D Mahan Drive, Tallahassee, Florida 32301 (by certified mail with return receipt requested); Burton M. Michaels, Esquire, Assistant Division Attorney, Division of Retirement, Cedars Executive Center, Building C, 2639 North Monroe Street, Tallahassee, Florida 33299-1560; Diane Cleavinger, Hearing Officer, and the Clerk of the Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 (by hand delivery to each).
EUREKA L. JENKINS DEPUTY CLERK
Division of Retirement Cedars Executive Center Building C
2639 North Monroe Street Tallahassee, Florida 32399-1560
Copies furnished to
John D. Car1son, Esquire
Gatlin, Woods, Carlson & Cowdery 1709-D Mahan Drive
Tallahassee, Florida 32301
Burton M. Michaels, Esquire Assistant Division Attorney Division of Retirement Cedars Executive Center Building C
2639 North Monroe Street Tallahassee, Florida 32399-1560
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
TILDON H. DAVIS, * NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND Appellant, * DISPOSITION THEREOF IF FILED.
*
* CASE NO. 90-3725
DOAH Case No. 90-0036
THE DEPARTMENT OF * ADMINISTRATION, DIVISION OF * RETIREMENT, *
*
Appellee. *
Opinion filed August 30, 1991.
Appeal from an order of the Department of Administration.
John D. Carlson of Catlin, Woods, Carlson & Cowdery, Tallahassee, for appellant.
Burton M. Michaels, Assistant Division Attorney, Division of Retirement, Tallahassee, for appellee.
WOLF, J.
Davis appeals from a final administrative order of the Department of Administration, Division of Retirement (division) which provided for forfeiture of certain retirement benefits by the appellant. A number of points are raised on appeal, but only one has merit and is necessary for us to address: Whether the division wrongfully rejected the finding of the hearing officer that appellant was an independent contractor rather than an employee of the Union County School Board from July 1, 1983, until October 31, 1984. We determine that the hearing officer was correct, and reverse.
Appellant retired from his position as finance officer for the Indian River County School Board on June 30, 1982. He began receiving retirement benefits from the Florida Retirement System. On November 10, 1982, appellant was employed as the finance officer for the Union County School Board pursuant to a contract of employment. The Union County School Board is also a member of the State of Florida Retirement System.
Sometime thereafter, appellant and the Union County School Board entered into an agreement which purportedly allowed appellant to act as an independent contractor rather than an employee during the period from July 1, 1983, until
October 1, 1984. The reasons given for the change in relationship were that Dr. Davis wished to spend more time with his family in Vero Beach and that there was a backlog of work at the Union County School Board. On November 1, 1984, Dr.
Davis was again hired as an employee, finance director, of the Union County School Board.
The nature of the employment relationship is critical because of former section 121.091(9)(b), Florida Statutes (1983), which dealt with entitlement to benefits of retirees who are reemployed by a member of the Florida Retirement System.
That statutory section, which was in effect from November 1982, until June, 1985, provided in pertinent part
(9) EMPLOYMENT AFTER RETIREMENT; LIMITATION.-- (b)1. Any person who is retired under this chapter, except under the disability retirement provisions of subsection (4), may be employed by an employer that participates in a state- administered retirement system and receive compensation from such employment and retirement benefits at the same time, so long as the employment does not exceed 780 hours each calendar year, or the compensation earned in such employment does not exceed $4,000 each calendar year, whichever limitation permits the longer employment. However, such limitation does not apply to a person age 65 or older.
2. Any person to whom the limitation in subparagraph 1. applies who will exceed such limitation shall give timely notice of this fact in writing to his employer and to the division and shall advise both of the date on which he will exceed the limitation. The division shall suspend such retired person's benefits for the remainder of the calendar year during which he continues employment in excess of the limitation in subparagraph 1.
Appellant did not personally notify the division in writing of his employment relationship with Union County, but continued to receive retirement benefits. During an audit of the Union County School Board in 1989, the division learned of potential retirement benefit overpayments made to the appellant.
The division then initiated forfeiture proceedings to recover benefits.
Appellant defended the claim on a number of grounds including the assertion that he was an independent contractor from July 1, 1983, until October 1, 1984, 1/ and, thus, the statute was inapplicable to him during this period.
The hearing officer agreed with appellant's contention concerning his status as an independent contractor and made the following findings:
Originally, Petitioner was employed as a regular employee of the school district under a standard contract of employment. However, due to the fact that Dr. Davis wished to control his
work schedule so that he could spend more time with his family at his home in Vero Beach and because Dr. Davis wanted to offer his financial expertise to other School Districts, on July 1, 1983, the school district entered into a contract with Petitioner as an independent contractor.
The term of the contract was July 1, 1983 through October 31, 1984. During the term of this contract Petitioner did not receive the usual employee fringe benefits as he would have if he had been employed. There was no annual or sick leave granted to Dr. Davis and no health or worker's compensation benefits extended to Dr. Davis. Also because Petitioner was an independent contractor, the school district did not withhold any wages for income taxes on Petitioner's fees and did not pay any social security on Petitioner's fees. Petitioner set his own work schedule and could accomplish his work at a location of his choice. Petitioner, in fact, was making an attempt to gain another school district's business during the time of his independent contractor status. Petitioner was not subject to control or review by any superior except as to the results of his work. Petitioner's fee was not paid from the District's regular payroll account, but from an account used to pay for contracted services.
His fees were paid based on a monthly invoice which he submitted to the school district.
There was no evidence which would demonstrate that this contractual arrangement was collusive between Petitioner and the school district.
Since Petitioner was an independent contractor from July 1, 1983 through October 31, 1984, he is entitled to return [sic] the retirement benefits received by him during that period of time.
After October 31, 1984, Petitioner was again employed as a regular employee by the school district. Dr. Davis was required to and did execute a loyalty oath, a W-4 form, a Florida Retirement System form FR-10 and a regular contract of employment. Dr. Davis became eligible for and did thereafter receive benefits of employment which he was not eligible to receive as an independent contractor. Dr. Davis remained in the employment of the Union County School Board through June 30, 1987.
In summary, Petitioner was a regular employee of the District from June 30, 1982 through June 30, 1983 and November 1984 through June 30, 1987. Petitioner was an independent contractor from July 1, 1983 through October 31, 1984.
Based upon these findings, the hearing officer would not allow the division to recover alleged overpayments of benefits for certain periods of 1983 and all of 1984. The division, in its final order, rejected the finding of the hearing officer that appellant was an independent contractor, relying on the case of Cantor v. Cochran, 184 So.2d 173 (Fla. 1966), and stated
Thus, under Cantor v. Cochran, such statements of the parties do not constitute competent evidence; and in this Final Order it has been found and held that the recommended finding of the Hearing Officer that the Petitioner was an independent contractor, is supported only by such statements of the parties, which is not competent evidence. From an examination of the entire record, all of the evidence is, without contradiction, that the Petitioner during the entire period of time from November 1, 1982, through some time in 1987, continuously performed the same duties and responsibilities as Finance Director without any changes occurring during the period in question from July 1, 1983, through October 31, 1984.
We find that the division erroneously applied Cantor v. Cochran in the instant case and that there was substantial competent evidence to support the hearing officer's findings.
In Cantor, the supreme court held that the status of the employment relationship depended upon all the circumstances surrounding the relationship and not just the statements of the parties. See also Herman v. Roche, 533 So.2d 824 (Fla. 1st DCA 1988). The agreement between the parties, while not conclusive however, is competent evidence concerning the nature of the relationship. 2/
In addition, evidence independent of the parties' statements was introduced. Business records reflecting payment of remuneration, accrual of benefits, payment of taxes, and hours worked were introduced. There was also evidence concerning level of supervision and the efforts of appellant to contract with other school boards.
We find that the division's determination that the findings of the hearing officer were not supported by competent substantial evidence was in error. The division was, therefore, not free to reject the hearing officer's findings that appellant acted as an independent contractor during the period from July 1, 1983, until October 1, 1984. Greseth v. Department of Health and Rehabilitative Services, 573 So.2d 1004 (Fla. 4th DCA 1991). We also find no evidence that the hearing officer applied an incorrect legal standard in determining appellant's employment status. See Herman v. Roche, supra.
We, therefore, reverse and remand the case for entry of a final order in accordance with the dictates of this opinion.
WIGGINTON and ALLEN, JJ., concur.
ENDNOTES
1/ Appellant also asserted that the statute was unconstitutional and that the forfeiture proceeding was barred by laches or the statute of limitations. He reasserts these contentions on appeal. We find no merit in these other contentions.
2/ See factors outlined in Cantor for determining the employment relationship.
================================================================= AMENDED AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION
DIVISION OF RETIREMENT
TILDON H. DAVIS,
Petitioner,
Division of Retirement
vs. Case No. DR89-26
(DOAH Case No. 90-36) DEPARTMENT OF ADMINISTRATION, (1st DCA Case No. 90-3725) DIVISION OF RETIREMENT,
Respondent.
/
AMENDED FINAL ORDER ON MANDATE
THIS CAUSE came on to be considered upon the Mandate from the District Court of Appeal of the First District of Florida issued October 30, 1991, in the case of Davis v. The Department of Administration, Division of Retirement,
So.2d (Fla. 1st DCA 1991) (Case No. 90-3725, Opinion rendered August 30, 1991), reversing the Final Order of the Director of the Division of Retirement (rendered on November 30, 1990) in this cause. In that Final Order the Petitioner was determined to have been an employee of the Union County School Board from January 1, 1983, through June 30, 1985, and not an independent contractor, and that he was not entitled to retirement benefit payments paid to him from May 19, 1983, through December 31, 1983, and from May 18, 1984, through
December 31, 1984, and from May 17, 1985, through June 30, 1985, in that those payments were made subsequent to his having exceeded the 780 hour per calendar year reemployment limitation in Section 121.091(9)(b), Florida Statutes (1983), and that overpayment of retirement benefits in the sum of $20,324.40 were made during those periods. In the Recommended Order of the Hearing Officer the recommended findings and holdings were that the relationship between the Petitioner and the Union County School Board was that of an independent contractor during the period between July 1, 19?3, and October 31, 1984, but that he was an employee of the School Board between January 1, 1983, and June 30, 1983, and from January 1, 1985, through June 30, 1985, and that the
Petitioner exceeded the 780 hour limitation in 1983 and 1985 for the periods from May 25, 1983, through June 30, 1983, and from May 25, 1985, through June 30, 1985, for which he received an overpayment in retirement benefits for those time periods in the amount of $3,024.66.
In its Opinion, the First District Court of Appeal stated: "Davis appeals from a final
administrative order of the Department of
Administration, Division of Retirement (division) which provided for forfeiture of certain retirement benefits by the appellant. A number of points are raised on appeal, but only one has merit and is necessary for us to address: Whether the division wrongfully rejected the finding of the hearing officer that the appellant was an independent contractor rather than an employee of the Union County School Board from July 1, 1983, until October 31, 1984. We determine that the hearing officer was correct, and reverse."
At the end of its Opinion, the Court remanded this cause for the entry of a Final Order in accordance with the dictates of its Opinion.
In accordance with said Mandate and Opinion in Davis v. Department of Administration, Division of Retirement, supra, it is,
ORDERED AND DIRECTED that the Final Order of the Director of the Division of Retirement entered in the above-styled and numbered cause and rendered on November 30, 1990, be and the same is hereby vacated and set aside to the extent that it is inconsistent with said decision, Opinion and Order of the First District Court Of Appeal of Florida, and the Final Order be and the same is hereby amended in accordance with the dictates of the said decision, Opinion and Order of the First District Court of Appeal. And, it is, further,
ORDERED AND DIRECTED that the Petitioner was overpaid retirement benefits during May and June 1983, and May and June 1985, in the sum of $3,024.66; rather than the sum of $20,324.40 as set forth in the Final Order in this cause, which sum has been collected from the Petitioner, therefore entitling the Petitioner to a refund in the amount of $17,299.74.
DONE AND ORDERED this 13th day of November, 1991, in Tallahassee, Florida.
J. MCMULLIAN III
State Retirement Director Division of Retirement Cedars Executive Center 2639 North Monroe Street
Tallahassee, Florida 32399-1560
(904) 487-1230
CLERK'S CERTIFICATE
I HEREBY CERTIFY that this Amended Final Order on Mandate was filed with the Clerk of the Division of Retirement on this 13th day of November, 1991. And on this same date, copies were furnished to the following as noted respectively: John D. Car1son, Esquire, Gatlin, Woods, Carlson & Cowdery, 1709- D Mahan Drive, Tallahassee, Florida 32301 (by certified mail with return receipt requested); Burton M. Michaels, Esquire, Assistant Division Attorney, Division of Retirement, Cedars Executive Center, Building C, 2639 North Monroe Street, Tallahassee, Florida 33299-1560; Diane Cleavinger, Hearing Officer, and the Clerk of the Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 (by hand delivery to each).
BETTY ANN LEDFORD CLERK
Division of Retirement Cedars Executive Center Building C
2639 North Monroe Street Tallahassee, Florida 32399-1560
Copies furnished to:
John D. Carlson, Esquire 1709-D Mahan Drive Tallahassee, Florida 32308
Burton Michaels, Esquire Division of Retirement
2639 N. Monroe Street, Building C Tallahassee, Florida 32303
Aletta Shutes Secretary
Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
Augustus D. Aikens, Jr., Esquire Department of Administration
435 Carlton Building Tallahassee, Florida 32399-1550
1 Petitioner did raise the defense that the Division's claim is barred by the statute of limitations and/or laches. However, neither of these doctrines is applicable to the State.
| Issue Date | Proceedings |
|---|---|
| Aug. 31, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 13, 1991 | Agency Final Order | |
| Aug. 31, 1990 | Recommended Order | Retirement benefits-work in excess of statutory time limits-independent contractor status-Recommended Order upheld on appeal |
