STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITY OF BELLEAIR BEACH, FLORIDA, )
)
Petitioner, )
)
vs. ) CASE NO. 93-6518
)
DIVISION OF RETIREMENT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on February 24, 1994, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Thomas J. Trask, Esquire
Frazer, Hubbard, Brandt & Trask
595 Main Street Dunedin, Florida 34698
For Respondent: Jodi B. Jennings, Esquire
Division of Retirement
Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
STATEMENT OF THE ISSUE
Whether City of Belleair Beach Treasurer Robert K. Hebden was an independent contractor or an employee of the city.
PRELIMINARY STATEMENT
By certified letter dated October 11, 1993, the Division of Retirement (Division) notified the City of Belleair Beach (City) that the Division regarded City Treasurer Robert K. Hebden as a part-time employee and that appropriate contributions to the Florida Retirement System were due.
By Petition for Formal Proceeding, the City challenged the Division's determination of Mr. Hebden's employment status. The matter was referred to the Division of Administrative Hearings which scheduled and noticed the hearing.
At hearing, the City presented the testimony of three witnesses and had exhibits numbered 1-16 admitted into evidence. The Division presented the testimony of two witnesses and had exhibits numbered 3, 7, 11 and 12 admitted into evidence.
No transcript of the hearing was filed. Both parties filed proposed recommended orders. The proposed findings of fact are ruled upon as set forth in the Appendix which is attached and hereby made a part of this Recommended Order.
FINDINGS OF FACT
The Petitioner City of Belleair Beach (City) is a participating local agency of the Florida Retirement System (FRS) and is subject to the laws applicable to the FRS. The City began participating in the FRS through the adoption of City Ordinance 99 in 1973.
The Respondent Division of Retirement (Division) is the state agency charged by statute with the administration of the FRS.
On a date unspecified, the Division's Management Review Section audited the City as required by statute. Based on the audit, the Division concluded that Mr. Hebden was not an independent contractor, but was a part time employee of the City. The Division communicated this information to the City by letter of May 27, 1992.
The Division's Enrollment Section, responsible for enrolling employees in the FRS, conducted an analysis of the materials obtained by the Management Review Section, and concurred in the initial employment status determination.
By letter of October 11, 1993, the Director of the State Division of Retirement notified the City that the Division had determined Mr. Hebden to be have been an employee in a regularly established position for purposes of the FRS from July 1979 through February 1991, and that FRS contributions were due for that period.
On October 15, 1993, Mr. Hebden signed an FRS application for service retirement. The application was filed with the FRS.
Mr. Hebden completed the application on the suggestion of the Enrollment Section Administrator. Mr. Hebden considers himself to have worked for the City as an independent contractor and would not have filed an FRS application without the request by the enrollment administrator.
In concluding that Mr. Hebden was an employee, the Division reviewed all materials furnished by the City. Such materials included copies of contracts, billing statements and IRS forms. At all times, the Division has been amenable to reviewing any additional documents submitted by the City.
Beginning in 1972, and continuing to February of 1991, Robert K. Hebden provided various services to the City. Beginning in July 1979, Mr. Hebden served as the City Treasurer.
The position of Belleair Beach City Treasurer is established by city ordinance.
The position description for the City Treasurer sets forth duties as follows:
The treasurer works on a daily basis primarily under the mayor's supervision but is ultimately accountable to the city council. Compiles operating and capital expense estimates for annual budget. Forecasts problem areas of income and expense and proposes possible solutions. Maintains general accounting system and appropriate operating cash balances. Submits to council a monthly detailed statement of revenue and disbursements in contrast with annual budget. Prepares for submission to council a detailed financial statement as of the end of each fiscal year. Invests surplus General Government Funds in conjunction with the Mayor or Deputy Mayor and recommends investment of Sewer Trust Funds in conjunction with the approved Trustee. Provides for payment of bonds and interest and maintains files for cancelled coupons and bonds.
Maintains capital assets inventory including acquisition and disposition.
Between July 1, 1979 and February 12, 1991, Mr. Hebden was the Belleair Beach City Treasurer. He performed the duties of the position description and such additional duties as were assigned at the discretion of the Mayor and Council.
In February 1983, Mr. Hebden and the City entered into a written contract regarding his service as Treasurer. The initial contract was retroactive to October 1, 1982. Prior to this point, Mr. Hebden acted as City Treasurer under an oral agreement with the City officials.
The February 2, 1983 contract identifies Mr. Hebden as "the Contractor." The contract is for the one year period of October 1, 1982 to September 30, 1983 and provides as follows:
The Contractor will be allowed twelve (12) days of paid sick leave and at times mutually agreeable fifteen (15) days of vacation without adjustment to the monthly fee. Absence in excess of this amount will be adjusted on a prorata basis.
The work week will be 8:30 A. M. to 12:30 P. M. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Mayor.
Services will be reimbursed on a monthly basis at the rate of SEVEN HUNDRED DOLLARS ($700.00) per month, plus an allowance of SEVENTY DOLLARS ($70.00) for expenses upon receipt of a statement.
This agreement may be extended beyond the original term of One (1) year upon such terms and conditions as the parties shall mutually agree between them.
Beginning with the subsequent agreement dated July 14, 1983, all contracts identify Mr. Hebden as "the City Treasurer" rather than "the Contractor."
The July 14, 1983 contract provides as follows:
That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:30 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Mayor. The duties of the City Treasurer shall include but not be limited to:
-compilation of current and capital expense estimates for the annual budget
-maintenance of a general accounting system
-submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget
-preparation for submission to council of a detailed financial statement as to the end of each fiscal year
A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be EIGHT HUNDRED THIRTY DOLLARS AND NO/100
($830.00) per month.
THIS AGREEMENT shall be reviewed annually by the Personnel Committee of the City Council, the Mayor and the City Treasurer.
THIS AGREEMENT shall expire on September 30 of each year unless renewed by Council prior to that time.
THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so.
The September 10, 1984 contract for the one year period to September 30, 1985 is identical to the agreement of July 14, 1983 except that the retainer fee was increased to $900.00 monthly.
The July 15, 1985 contract for the one year period to September 30, 1986 is similar to the agreement of September 10, 1984. The retainer fee was increased to $1100.00 monthly and paid leave was again included. The agreement provides as follows:
....In addition, the City Treasurer shall receive three work-weeks vacation annually (allowing for a base figure of 3 work-weeks for the current fiscal year) and twelve work-days sick leave annually (allowing for twelve work-days for the current fiscal year).
THIS AGREEMENT shall be reviewed annually by the Personnel Committee of the City Council, the Mayor and the City Treasurer.
THIS AGREEMENT shall commence October 1, 1985, and shall expire on September 30 of each year unless renewed by Council prior to that time.
THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so.
The September 23, 1986 contract for the one year period to September 30, 1987 is substantially similar to the preceding contract, however, an amendment was made to the paid leave provisions. The agreement provides as follows:
That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:30 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Council or Mayor. The duties of the City Treasurer shall include but not be limited to:
compilation of current and capital expense estimates for the annual budget
maintenance of a general accounting system
submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget
preparation for submission to council of a detailed financial statement as to the end of each fiscal year
A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be ELEVEN HUNDRED THIRTY DOLLARS AND NO/100
($1100.00) per month. In addition, the City Treasurer shall receive three work-weeks vacation annually and twelve work-days sick leave annually. Annual leave, which will only be applied against working days, and shall be taken in not less than four (4) hour increments, may accrue to a maximum of fifteen (15) days. Annual leave in excess of fifteen (15) days will be forfeited on the following anniversary date after the year in which earned.
The August 3, 1987 contract for the one year period of October 1, 1987 to September 30, 1988 is substantially similar to the preceding contract except that the work hours were amended to 8:00 a.m. to 12:30 p.m. and monthly payment was increased to $1300.00.
The September 12, 1988 contract for the one year period of October 1, 1988 to September 30, 1989 is substantially similar to the preceding contract except that monthly payment was increased to $1350.00.
In 1989, some Council members questioned Mr. Hebden's performance and considered termination of his contract.
The September 25, 1989 contract for the one year period of October 1, 1989 to September 30, 1990 is substantially similar to the preceding contract except that the agreement provides "for a six months performance evaluation." Apparently, the concerned Council members were satisfied with the review and the contract was again renewed.
The September 10, 1990 contract reflected Mr. Hebden's intention to leave his position. The contract provides as follows:
That Robert K. Hebden shall serve the City of Belleair Beach as the City Treasurer, appointed by the City Council. The services of the City Treasurer shall be performed between the hours of 8:00 a.m. to 12:30 p.m. daily, Monday through Friday, except for legal holidays recognized by the City. In addition, attendance will be required at Council meetings, work sessions and committee meetings, as may be determined by the Council or Mayor. The duties of the City Treasurer shall include but not be limited to:
compilation of current and capital expense estimates for the annual budget
maintenance of a general accounting system
submission to the city council of a monthly detailed statement of revenue and disbursements in contrast with the annual budget
preparation for submission to council of a detailed financial statement as to the end of each fiscal year
* A RETAINER fee shall be paid by the City of Belleair Beach to the City Treasurer for the above service which shall be [[THIRTEEN HUNDRED AND FIFTY DOLLARS AND NO/100 ($1350.00)]] <<FOURTEEN HUNDRED FIFTY DOLLARS
AND NO/100 ($1450.00)>> per month. In addition, the City Treasurer shall receive [[three work-weeks vacation annually and twelve]] <<three>> work-days sick leave [[annually. Annual leave, which
will only be applied against working days,
and shall be taken in not less than four (4) hour increments, may accrue to a maximum of fifteen (15) days. Annual leave in excess of fifteen (15) days will be forfeited on the following anniversary date after the year in which earned.]] <<Annual leave earned through September 30, 1990 and not taken will be
paid on completion of this contract.>>
[[THIS AGREEMENT shall provide for a six months performance evaluation.]]
[[THIS AGREEMENT shall be reviewed annually by the personnel committee of the City Council, the Mayor and the City Treasurer.]]
THIS AGREEMENT shall commence October 1, 1985, and shall expire on <<December 31, 1990>> [[September
30 of each year unless renewed by Council prior to that time.]]
THIS AGREEMENT shall be cancelled by either party upon a thirty (30) day notice of intent to do so.
* Note: In the above quotation, language which has been added
is within the <<>>; deleted language is within the [[]].
All the contracts identified herein were between the City and Mr. Hebden personally. Mr. Hebden signed the contracts. Except as otherwise stated herein, the terms of the contracts were negotiated between Mr. Hebden and the City.
Mr. Hebden performed all the responsibilities of the contract personally. For a brief period, he was assisted by a man identified as "Mr. Denman," a person employed by the City. He hired no assistants.
Mr. Hebden performed his responsibilities according to practices and procedures he created. He was not provided instructions by the City on how to perform his tasks. The City provided no training to Mr. Hebden.
Prior to terminating his tenure as City Treasurer, Mr. Hebden trained his successor in the practices and procedures Mr. Hebden had developed.
At all times during Mr. Hebden's employment with the City, he worked the hours specified by the contracts in his office at City Hall. Mr. Hebden testified that he could not recall how his office hours had been determined.
The space was provided by the City. The responsibilities of Mr. Hebden's position required utilization of city records, and it was therefore appropriate for such tasks to be performed in an office at City Hall. All furnishings for the office and materials used in performing his tasks were provided by the City.
During the period between July 1979 and February 1991, Mr. Hebden submitted to the City statements for payment. Generally, the statements were submitted on a monthly basis.
Mr. Hebden had no risk of profit or loss based on any actions of the City. He had no personal investment in the City. Mr. Hebden was paid according to the terms of the contract. He did not receive additional remuneration for his appearance at or participation in Council meetings, work sessions or committee meetings as directed by the Council or Mayor.
In the first written contract, Mr. Hebden received a payment for "expenses" in addition to the monthly remuneration. Additionally, Mr. Hebden was reimbursed for personal expenses related to City business use of his car and his boat.
Although only one formal performance evaluation was completed during his service, the contracts provide for annual review, except for the final contract which terminated Mr. Hebden's service to the City. Upon said termination, Mr. Hebden was paid for the accrued annual leave.
Under the terms of the contract, Mr. Hebden's services could be terminated without penalty upon thirty days notice by either party.
Mr. Hebden did not advertise his services to the general public, because he was not interested in taking on additional work, however, for a time, he provided accounting consulting services to the Indian Rocks Fire Control District and was compensated for his work. He also provided volunteer services to the Church of the Isles.
During the period relevant to this proceeding Mr. Hebden held no business or occupational licenses.
For the years 1979 through 1982, the City reported Mr. Hebden's compensation to the Internal Revenue Service Form by using IRS Form 1099-NEC, the form used to report "Nonemployee Compensation."
For the years 1983 through 1991, the City reported Mr. Hebden's compensation to the Internal Revenue Service Form by using IRS Form 1099-MISC, the form used to report "Miscellaneous Compensation."
The City did not provide health or life insurance coverage to Mr. Hebden.
The City did not pay federal social security or withholding taxes for Mr. Hebden.
The City did not provide or pay workers compensation benefits or unemployment benefits for Mr. Hebden.
The City did not pay retirement contributions to the FRS for Mr. Hebden.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Division of Retirement is authorized to administer the provisions of the Florida Retirement System. Section 121.031(1), Florida Administrative Code.
Membership in the FRS is compulsory for all employees filling full- time or part-time regularly established positions. Rule 60S-1.004(4), Florida Administrative Code.
For purposes of the FRS, an "officer or employee" is defined as any person receiving salary payments for work performed in a regularly established position and , if employed by a city or special district, employed in a covered group. Section 121.021(11), Florida Statutes.
A regularly established position is defined as an employment position which will be in existence for a period beyond six consecutive months. Rule 60S-1.004(4)(b), Florida Administrative Code.
In considering whether a person is an employee or an independent contractor, the Division Rule 22B-6.01(12), Florida Administrative Code, provides the following definition:
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 compensated from an other salaries and wages account; does not earn annual or sick leave; and may frequently do a majority of his work in his own office rather than on the employer's premises.
In interpreting its rule, the division relies on common law tests of independent contractor status, and specifically the tests formulated by 1 Restatement of the Law, Agency (2nd ed.) Section 220, as described in Cantor v. Cochran, 184 So.2d 173 (Fla. 1966). Davis v. Department of Administration, Division of Retirement, 585 So.2d 421 (Fla. 1st DCA 1991). As set forth in Cantor, these tests are as follows:
the extent of control which, by the agreement, the master may exercise over the details of the work;
whether or not the one employed is engaged in a distinct occupation or business;
the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
the skill required in the particular occupation;
whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
the length of time for which the person is employed;
the method of payment, whether by the time or by the job;
whether or not the work is a part of the regular business of the employer;
whether or not the parties believe they are
creating the relationship of master and servant; and
whether the principal is or is not in business.
A review of the criteria as applied to this case is as follows: THE EXTENT OF CONTROL WHICH, BY THE AGREEMENT, THE
MASTER MAY EXERCISE OVER THE DETAILS OF THE WORK--
The description of the duties of the Belleair Beach City Treasurer describe in detail exactly what is expected of the position. The City Treasurer is to compile operating and capital expense estimates for annual budgets, forecast problem areas of income and expense and propose possible solutions,
maintain a general accounting system and appropriate operating cash balances, submit a monthly detailed statement of revenue and disbursements in contrast with annual budget, submit a detailed financial statement as of the end of each fiscal year, invest in conjunction with the Mayor or Deputy Mayor surplus General Government Funds, recommend in conjunction with the approved trustee investment of Sewer Trust Funds, provide for payment of bonds and interest, maintain files for cancelled coupons and bonds, and maintain an inventory of capital assets including acquisition and disposition. Mr. Hebden was required to attend various meetings as directed by the Mayor and Council, and to perform other tasks as directed.
Most importantly, the treasurer works on a daily basis under the mayor's supervision and is ultimately accountable to the city council. According to each of Mr. Hebden's contracts, the City Treasurer can be fired with 30 days notice without penalty. As set forth in Cantor, citing Larson on Workmen's Compensation Law:
The power to fire is the power to control. The absolute right to terminate the relationship without liability is not consistent with the concept of independent contractor, under which the contractor should have the legal right to complete the project contracted for and to treat any attempt to prevent completion as a breach of contract.
The detailed description of duties and the termination provision in each of Mr. Hebden's contracts are contrary to the assertion of independent contractor status.
WHETHER OR NOT THE ONE EMPLOYED IS ENGAGED IN A DISTINCT OCCUPATION OR BUSINESS--
Mr. Hebden was not engaged in a distinct occupation or business while serving as City Treasurer. He met the employment qualifications set forth on the job description and was employed to perform the duties identified by the City. As City Treasurer, he was engaged, as were other City employees, in conducting the business of the City.
THE KIND OF OCCUPATION, WITH REFERENCE TO WHETHER, IN THE LOCALITY, THE WORK IS USUALLY DONE UNDER THE DIRECTION OF THE EMPLOYER OR BY A SPECIALIST WITHOUT SUPERVISION--
The occupation of City Treasurer is, by job description, done under the immediate supervision of the Mayor and ultimately the City Council. The successor to Mr. Hebden was designated as an employee of the City. There is no credible evidence that Mr. Hebden was permitted to perform the responsibilities of City Treasurer without supervision.
THE SKILL REQUIRED IN THE PARTICULAR OCCUPATION--
Mr. Hebden met the employment qualifications set forth on the job description and was employed to perform the duties identified by the City. As with many occupations, any person meeting the qualifications could have also performed the job.
WHETHER THE EMPLOYER OR THE WORKMAN SUPPLIES THE INSTRUMENTALITIES, TOOLS, AND THE PLACE OF WORK FOR THE PERSON DOING THE WORK--
Because Mr. Hebden required access to City records to perform his job tasks, it is logical that he would maintain an office at City Hall. However, the City provided all furnishings in the office and provided all supplies to Mr. Hebden. Mr. Hebden did not control the hours of his work which were dictated by the employment contract.
THE LENGTH OF TIME FOR WHICH THE PERSON IS EMPLOYED--
Mr. Hebden was continuously employed as City Treasurer for about 12 years with no break in service.
THE METHOD OF PAYMENT, WHETHER BY THE TIME OR BY THE JOB--
Mr. Hebden's contracts provide no payment for completion of specific tasks, but instead provide payment for a monthly period. The time expended in attending meetings outside the specified work hours was not additionally compensated, but by the terms of the contracts were included in the monthly pay.
WHETHER OR NOT THE WORK IS A PART OF THE REGULAR BUSINESS OF THE EMPLOYER--
The City Treasurer's position is part of the regular operation of the City. The position is established by ordinance and is subject of a position description in the city's records.
WHETHER OR NOT THE PARTIES BELIEVE THEY ARE CREATING THE RELATIONSHIP OF MASTER AND SERVANT--
It is clear that the parties in this case were not attempting to create a master-servant relationship. The City paid none of the benefits which could suggest the existence of an employer-employee situation. Nonetheless, consideration of the nature of Mr. Hebden's employment as discussed herein, including the City's control over the Treasurer's responsibilities, working conditions, and tenure of employment, indicates that his position was one of an employee of the City.
WHETHER THE PRINCIPAL IS OR IS NOT IN BUSINESS--
Mr. Hebden worked under his own name, had no established business entity, did not advertise his services, made no sustained attempt to seek additional contracts for his services and held no business or occupational licenses.
Based on a review of the applicable rules in this case, the greater weight of the evidence establishes that Mr. Hebden was not an independent contractor but was a employee part time in a regularly established position with the City of Belleair Beach.
In 1991, the Division adopted Rule 60S-6.001(33) Florida Administrative Code, incorporating the Cantor criteria and providing additional standards for determination of independent contractor status. Although the rule was not in effect during Mr. Hebden's tenure as City Treasurer, the rule was in effect at the time the Division rendered its determination as to Mr. Hebden and was applied by the Division.
Application of the factors within Rule 60S-6.001(33) Florida Administrative Code, to this case provides as follows:
(33) INDEPENDENT CONTRACTOR--
Means an individual who is not subject to the control and direction of the employer for whom work is being performed, with respect not only to what shall be done but to how it shall be done. If the employer has the right to exert such control, an employer-employee relationship exists and the person is an employee and not an independent contractor. The Division has adopted the following factors as guidelines to aid in determining whether an individual is an employee or an independent contractor. The weight given each factor is not always the same and varies depending on the particular situation.
INSTRUCTIONS: An employee must comply with instructions from his employer about when, where, and how to work. The instructions may be oral or may be in the form of manuals or written procedures which show how the desired result is to be accomplished. Even if no actual instructions are given, the control factor is present if the employer has the right to give instructions.
The contract between the City and Mr. Hebden directed the time and place of his employment. The City retained control over the duties of the City Treasurer. Nothing in the contract precluded the City from directing how the tasks were to be performed.
TRAINING: An employee is trained to perform services in a particular manner. This is relevant when the skills and experience which would be used as an independent contractor were gained as a result of previous employment. Independent contractors ordinarily use their own methods and receive no training from purchasers of their services.
Mr. Hebden met the job qualifications set forth in the position description. He received no training from the City.
INTEGRATION: An employee's services are integrated into the business operations because the services are critical and essential to the success or continuation of an agency's progress/operation. This shows that the employee is subject to direction and control.
The City Treasurer's position is part of the regular operation of the City. The position is established by ordinance and is subject of a position description in the city's records. The position of Treasurer is critical and essential to the continuation of the City's operation.
SERVICES RENDERED PERSONALLY: An employee renders services personally. This shows that the employer is interested in the methods as well as the results. Lack of employer control may be indicated when a person has the right to hire a substitute without the employer's knowledge or approval.
Mr. Hebden rendered his services personally. The contracts between the City and Mr. Hebden provided him no right to hire a substitute. His employment as City Treasurer was premised on his individual qualifications.
HIRING ASSISTANTS: An employee works for an employer who hires, supervises, and pays assistants.
An independent contractor hires, supervises, and pays assistants under a contract that requires him or her to provide materials and labor and to be responsible only for the result.
The sole assistant to Mr. Hebden during his tenure as City Treasurer was another City employee.
CONTINUING RELATIONSHIP: An employee has a continuing relationship with an employer. A continuing relationship may exist where work is performed at frequently recurring, although irregular intervals.
Mr. Hebden was continuously employed as City Treasurer for about 12 years with no break in service.
SET HOURS OF WORK: An employee has a continuing relationship with an employer. An independent contractor is the master of his or her own time and works on his own schedule.
Mr. Hebden's work scheduled was set by contract. He was not contractually permitted to come and go from work at his convenience. His vacation time and sick leave were dictated by the contract, even to the point of the contract provision requiring annual leave be taken in increments of not less than four hours.
FULL-TIME OR PART-TIME WORK: An employee may work wither full-time or part-time for an employer. Full time does not necessarily mean an 8-hour day or a 5 or 6-day week. Its meanings may vary with the intent of the parties, the nature of the occupation and customs in the locality. These conditions should be considered in defining "full-time." An independent contractor can work when and for whom he or she chooses.
Mr. Hebden could not work "when and for whom" he chose. He was required to perform his City Treasurer role according to the schedule set forth in the contract.
WORK DONE ON PREMISES: An employee works on the premises of an employer, or works on a route or at a
,.location designated by an employer. The performance of work on the employer's premises is not controlling in itself; however it does imply that the employer has control over the employee. Work performed off the employer's premises does indicate some freedom from control; however, it does not in itself mean the worker is not an employee.
Although simple application of this criteria would lead to the conclusion that Mr. Hebden was an employee of the City, the City Treasurer position requires access to City records to perform his job tasks, therefore it is reasonable to maintain an office at City Hall.
ORDER OR SEQUENCE OF SERVICES: An employee generally performs services in the order or sequence set by an employer. This shows that the employee is subject to direction and control of the employer.
The order of services provided is set forth in the employment contract which specifies the timing of the Treasurer's reporting responsibilities.
REPORTS: An employee submits oral or written reports to an employer. This shows that the employee must account to the employer for his or her actions.
Mr. Hebden's employment contract identifies the reports which must be provided by him to the Mayor and Council.
PAYMENTS: An employee is usually paid by the hour, week or month. An independent contractor is paid periodically (usually a percent of the total payment) by the job or on a straight commission.
Mr. Hebden was paid on a monthly basis.
EXPENSES: An employee's business and/or travel expenses are paid by an employer. This shows that the employer is in a position to control expenses and therefore the employee is subject to regulations and control.
In the initial written contract, Mr. Hebden received a fixed reimbursement for "expenses" in addition to the monthly payment. He was also reimbursed for personal expenses related to City business use of his car and his boat.
TOOLS AND MATERIALS: An employee is furnished significant tools, materials, and other equipment by an employer. An independent contractor usually provides his own tools, materials, etc.
The City provided all furnishings in Mr. Hebden's office and provided all his work supplies.
INVESTMENT: An employee is usually furnished the necessary facilities. An independent contractor has a significant investment in the facilities he or she uses in performing services for someone else.
Mr. Hebden had no investment in the City's facilities.
PROFIT OR LOSS: An employee performs the services for an agreed upon wage and is not in a position to realize a profit or suffer a loss as a result of his services. An independent contractor can make a profit or suffer loss. Profit or loss implies the use of capital by the individual in an independent business of his own.
Mr. Hebden performed his job for an agreed upon payment. He was not in a position to realize a profit or suffer a loss as a result of his services. He had no capital investment in any independent business of his own.
WORKS FOR MORE THAN ONE PERSON OR FIRM: An employee usually works for one organization. However, a person may work for a number of people or organizations and still be an employee of one or all of them. An independent contractor provides his or her services to two or more unrelated persons or firms at the same time.
Mr. Hebden provided accounting consulting services to the Indian Rocks Fire Control District and was compensated for his work. He provided volunteer services to the Church of the Isles.
OFFERS SERVICES TO GENERAL PUBLIC: An independent contractor makes his or her services available to the general; public. This can be done in a number of ways: Having his/her own office and assistants, hanging out a
"shingle," Holding business licenses, having listings in business directories and telephone directories, and advertising in newspapers, trade journals, etc.
Mr. Hebden did not advertise his services to the general public. He held no business or occupational licenses.
RIGHT TO TERMINATE EMPLOYMENT: An employee can be fired by an employer. An independent contractor cannot be fired so long as he or she produces a result that meets the specifications of the contract. An independent contractor can be terminated but usually he will be entitled to damages for expenses incurred, lost profit, etc.
Under the terms of the contract, Mr. Hebden's employment could be terminated without penalty upon thirty days notice by the City.
RIGHT TO QUIT: An employee can quit his or her job at any time without incurring liability. An independent contractor usually agrees to complete a specific job and is responsible for its satisfactory completion, or is legally obligated to make good for failure to complete it.
Under the terms of the contract, Mr. Hebden could quit his job as City Treasurer without penalty upon thirty days notice to the City.
Application of Rule 60S-6.001(33), Florida Administrative Code to the facts in this case further establishes that Mr. Hebden was not an independent contractor but was a employee part time in a regularly established position with the City of Belleair Beach.
Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order determining that as City Treasurer of the City of Belleair Beach from July 1979 through February 1991, Robert K. Hebden was an employee of the City, and as such was a compulsory member of the Florida Retirement System for which contributions from the City are due.
DONE and RECOMMENDED this 21st day of March, 1994, in Tallahassee, Florida.
WILLIAM F. QUATTLEBAUM
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 21st day of March, 1994.
APPENDIX TO CASE NO. 93-6518
The following constitute rulings on proposed findings of facts submitted by the parties.
Petitioner
The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:
3. Rejected, contrary to the greater weight of the evidence. Mr. Hebden submitted invoices for payment as early as July, 1979.
11. Rejected, not supported by greater weight of the evidence. Because Mr. Hebden developed his own procedures for performing the duties of the City Treasurer, and trained his successor in performing the tasks of City Treasurer, it is not possible to conclude that Mr. Hebden's services were "not essential to the success or continuation of the City's operation."
Rejected, irrelevant.
Rejected, contrary to greater weight of evidence. Mr. Hebden testified on direct examination that he could not recall who chose the work hours set forth by contract. All contracts specify the hours to be worked. As to leave time, the first contract provided that such leave could be used only "at times mutually agreeable...." Subsequent contracts required annual leave to be used in four hour increments.
Rejected, contrary to greater weight of evidence. Mr. Hebden testified that some auto and boat expenses had been reimbursed. First contract and invoices for payment through September 30, 1982 include payment of sums for "expenses."
Rejected, contrary to greater weight of evidence. The contracts specify standard hours of employment and require attendance at meetings as directed by the Mayor and Council. The Respondent's assertion that Mr. Hebden "could make a profit or suffer a loss" is unsupported by credible evidence.
Respondent
The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:
5. Rejected, as to employment status of Mr. Hebden's predecessor or successor as City Treasurer, irrelevant.
28, 30. Rejected, as to employment status of Mr. Hebden's successor as City Treasurer, irrelevant.
COPIES FURNISHED:
A. J. McMullian, III, Director Division of Retirement
Cedars Executive Center, Bldg. C 2639 N. Monroe St.
Tallahassee, Florida 32399-1560
William H. Lindner, Secretary Knight Building, Suite 307 Koger Executive Center
2737 Centerview Drive
Tallahassee, Florida 32399-0950
Paul A. Rowell, General Counsel Knight Building, Suite 312 Koger Executive Center
2737 Centerview Drive
Tallahassee, FL 32399-0950
Thomas J Trask, Esquire
Frazer, Hubbard, Brandt & Trask
595 Main Street Dunedin, Florida 34698
Jodi B. Jennings, Esquire Division of Retirement
Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| May 02, 1994 | Final Order filed. |
| Mar. 21, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held February 24, 1994. |
| Mar. 07, 1994 | Proposed Recommended Order filed. (From Thomas J. Trask) |
| Mar. 07, 1994 | Respondent's Proposed Recommended Order filed. |
| Feb. 24, 1994 | 94-527Final Hearing Held; for applicable time frames, refer to CASE STATUS form stapled on right side of Clerk's Office case file. |
| Feb. 18, 1994 | (Petitioner) Notice of Taking Deposition; Respondent's Objection to Petitioner's Notice of Takign Deposition; Joint Prehearing Stipulation; Petitioner's Response to Respondent's First Request forProduction of Documen ts to Petitioner; Petiti |
| Feb. 18, 1994 | (Petitioner) Motion for Extension of Time to Complete Discovery w/cover Letter filed. |
| Feb. 17, 1994 | (Respondent) List of Exhibits filed. |
| Jan. 31, 1994 | (Respondent) Notice of Taking Deposition filed. |
| Jan. 04, 1994 | Order Establishing Prehearing Procedure sent out. |
| Dec. 28, 1993 | Respondent's First Request for Production of Documents; Notice of Service of Respondent's Interrogatories to Petitioners filed. |
| Dec. 20, 1993 | Notice of Hearing sent out. (hearing set for 2-24-94; 9:30am; Tallahassee) |
| Nov. 29, 1993 | Letter. to WFQ from Jodi B. Jennings re: Reply to Initial Order filed. |
| Nov. 17, 1993 | Initial Order issued. |
| Nov. 12, 1993 | Notice of Election to Request Assignment of Hearing Officer; Agency Action letter; Petition for Formal Proceeding filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 28, 1994 | Agency Final Order | |
| Mar. 21, 1994 | Recommended Order | City treasurer is employee when council can fire without penalty; independent contractors do not get vacation or sick leave. |
