Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Since on or about September, 1980, the Petitioner has been a full-time employee of the Florida State University System, and up until the 1987-88 academic year a participant in the state of Florida health insurance program offered through the Florida State University by the Respondent, Department of Administration. During the 1987-88 academic year, the Petitioner was granted an unpaid leave of absence so that he could pursue a teaching assignment in the National Republic of China. Since the 1983-84 academic year, the Petitioner had been a participant in the Capital Health Plan Health Maintenance Organization (HMO) offered in Tallahassee, Florida under the Respondent's insurance program. Since the Petitioner could not avail himself of the benefits of the HMO in which he was enrolled in Tallahassee, Florida during the time he anticipated being in the National Republic of China, at or about the time the Petitioner commenced his unpaid leave of absence, he notified the personnel office at Florida State University that he wished to discontinue his participation in the HMO. During the 1987-88 academic year, the Petitioner did not make payments to continue his coverage during his period of leave of absence in the HMO. Immediately upon his return to employment on or about August 4, 1988, the Petitioner inquired of the personnel office at Florida State University of the steps to be taken to obtain coverage under his previous HMO for the 1988-89 academic year. The Petitioner was given certain forms to complete and return to the Florida State University personnel office. Petitioner completed and returned those forms as instructed but was informed that he could not reenroll since no open period of enrollment was available to him at that time. By letter dated July 8, 1988, Ronald G. Meyer, representing the United Faculty of Florida , FTP-FEA, corresponded with Mr. Carl Ogden, Director, Division of State Employees' Insurance, concerning a group of university faculty members who would not be on campus during the open enrollment period effective June 22, 1988 through July 15, 1988, and the need for a special open enrollment period upon them returning to their respective campus. By letter dated July 19, 1988, Mr. Ogden responded to Mr. Meyer's letter of July 8, 1988 and informed Mr. Meyer that the employees identified in his letter would be accommodated, and set out the procedure for that to be accomplished. The group of employees referred to in Mr. Meyer's letter and addressed by Mr. Ogden are those employees referred to as being "employed less than year round" and identified in Rule 22K-1.054(7), Florida Administrative Code, but does not include an employee such as Petitioner who was on an authorized leave without pay during this open enrollment period. The employees covered by the memorandum dated August 12, 1988 from Harriette A. Hudson, Manager, Insurance and Benefits, Florida State University, advising the "salaried Faculty Off Summer Payroll" of the special open enrollment period does not include employees such as Petitioner who was on an authorized leave without pay until August 4, 1988. Additionally, there was no evidence that this "open enrollment period " was designated by the Department of Administration or that the Department of Administration had authorized Florida State University to designate this open enrollment period. There was no open enrollment period available to Petitioner during August 1988. The first open enrollment period available to Petitioner after returning to work in August 1988 was in December 1988, at which time he reenrolled and became eligible for benefits on March 1, 1989. Only the Secretary of the Department of Administration has authority to determine an open enrollment period which is accomplished by numbered memorandum.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that Respondent enter a Final Order denying Petitioner's request for coverage under the state of Florida Health Plan and any costs he may have incurred as a result of not being covered under the state plan. RESPECTFULLY submitted and entered this 29th day of March, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 29th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0277 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings Submitted by Petitioner 1.-2. Adopted in Findings of Fact 2 & 4, respectively. Immaterial to the conclusion reached herein. Adopted in Finding of Fact 5. 5.-6. Subordinate to facts actually found in the Recommended Order. 7. Adopted in Finding of Fact 10. Specific Rulings on Proposed Findings Submitted by Respondent 1.-6. Adopted in Findings of Fact 1 - 6, respectively. 7.-8. Subordinate to facts actually found in the Recommended Order. 9. Adopted in Finding of Fact 10, but modified. 10.-11. Immaterial to the conclusion reach herein. 12. Rejected as being a conclusion of law rather that a finding of fact. COPIES FURNISHED: Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikins, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Ronald G. Meyer, Esquire MEYER, BROOKS AND COOPER, P. A. P.O. Box 1547 Tallahassee, Florida 32302 William A. Frieder, Esquire Department of Administration 440 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether Petitioner is entitled to participate in the Florida Retirement System (FRS) from January 1, 2000, through June 13, 2002, on the basis of his employment with Florida Community College at Jacksonville (FCCJ).
Findings Of Fact Petitioner, Robert Burns, has been employed as an adjunct instructor of FCCJ since March 1989. FCCJ is a member employer under FRS. Adjunct instructors traditionally have been employed by FCCJ on a class-by-class, semester-by-semester basis, and have no expectation of employment beyond any single semester. Petitioner knew this from his date of first hire. When Petitioner began work with FCCJ, all adjunct instructors were given a contract for each term and each course. This practice continued for all instructors and classes until the year 2000. Despite the semester-to-semester, repetitive contracts, occasionally Petitioner's courses were of a duration longer than one semester, and Petitioner was sometimes evaluated only on an annual basis. These evaluations were for purposes of certifying Petitioner and similarly situated adjunct instructional personnel for further semester contracts. At all times material, Petitioner taught on three campuses and taught college courses in biology and earth science; acted as a facilitator in the laboratory; and taught Adult Studies courses. At all times material, sixty percent of Petitioner's time was spent teaching Adult Studies courses. From 1989 until January 1, 2000, Petitioner was provided semester contracts for each of the three foregoing functions: college courses, lab facilitation, and Adult Studies courses. Every contract clearly acknowledged, in pertinent part, 3. This contract shall at all times be subject to any and all laws, Florida State Board of Education Rules and Florida Community College at Jacksonville Board of Trustees rules and regulations now existing or hereinafter lawfully enacted or promulgated. In furtherance thereof, the Contractor expressly agrees to become aware of and comply with all such applicable regulations, including but not limited to those addressing discrimination/affirmative action and sexual harassment. * * * The Contractor agrees and understands that he/she is not entitled to receive benefits made available by the College to its full-time employees. The Contractor further agrees and understands that his/her services are of a temporary nature, and that the College does not agree to provide the Contractor with any future employment or contract whether temporary, permanent or otherwise. The relationship hereby created between the Contractor and the College shall be deemed to have been voluntarily terminated by the Contractor upon the termination or expiration of this agreement. The Contractor agrees and understands that the compensation described herein is the entire compensation due to Contractor for performance of services pursuant to this contract. Specifically, Contractor agrees and understands that he/she shall not be entitled to wages or hours similar to those provided to College employees. * * * 9. The Contractor and the College understand and hereby agree that this contract does not and shall not be deemed to create an employment relationship. From January 1, 2000, through June 2002, Petitioner was not provided individual contracts for his Adult Studies classes, but was provided contracts for his other courses and lab facilitation work. In 2000, FCCJ began implementing a new computer system and, as a result, some adjunct instructors were not given individual contracts for each course. Adult Studies was one program area where time cards, rather than individual contracts, were used. No one at FCCJ ever told Petitioner that he had become a full or part-time employee, as opposed to an adjunct instructor. At various times during the period after January 1, 2000, Petitioner and other adjunct instructors approached Dean of Adult Studies, Lloyd Watkins, and asked him where their contracts were. The Dean inquired of FCCJ's Human Resources Department and was told there were too many contracts to do and so they would not be issued. It is not certain that Dean Watkins ever conveyed this information to Petitioner. However, throughout the period at issue, Petitioner used the time cards and understood that his employment was on a class by class, semester by semester basis. The issue of FRS benefits vis-á-vis independent contractor status did not arise until after Petitioner had been terminated.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order denying Petitioner's request to participate in FRS from January 1, 2000, through June 13, 2002. DONE AND ENTERED this 14th day of January, 2003, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2003. COPIES FURNISHED: Al Millar, Esquire 4627 Ocean Street Mayport, Florida 32233 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center 2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560 Simone Marstiller, General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
