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
Findings Of Fact THIS CAUSE comes on for consideration based upon the Petition for Determination of the Invalidity of the existing Rules 6A-14.416 and 6A-14.417, Florida Administrative Code, for allegedly being in violation of the provisions of Section 120.56, Florida Statutes. The Petition was filed on September 22, 1978 and the hearing was conducted on October 20, 1978. The hearing rises out of the collateral Section 120.57(1), Florida Statutes hearing in which an administrative complaint had been filed under the guise of Rule 6A-14.416, Florida Administrative Code, (in addition to certain statutory authority) against the current Petitioner, Gregory Bruce Nelson. During the course of that hearing it developed that Gregory Bruce Nelson, through his affirmative defenses to the Complaint, wished to challenge Rule 6A-14.416, Florida Administrative Code for alleged violation of Section 120.56, Florida Statutes. In response to that challenge, the Section 120.57(1) hearing, (which is reported as Lee G. Henderson, as Director of the Division of Community Colleges, Petitioner, vs. Gregory Bruce Nelson, Respondent, DOAH Case Number 78-283), has been stayed pending the outcome of the case sub judice. An order was entered by the undersigned allowing for sufficient time to file the Section 120.56, Florida Statutes challenge to Rule 6A-14.416, Florida Administrative Code and Mr. Nelson has complied with the terms and conditions of that order as to timeliness of the Petition for review pursuant to Section 120.56, Florida Statutes. Concurrently, Mr. Nelson has availed himself of the opportunity to submit a challenge to Rule 6A-14.417, Florida Administrative Code. The issue of consideration of the validity of Rules 6A-14.416 and 6A- 14.417, Florida Administrative Code, is properly joined and will be determined. Respondents moved to strike certain portions of the Petition at the commencement of the hearing and the motion was granted as to paragraphs 3(f), (g) and paragraph 4(d) and a portion of paragraph 5, beginning with the words ".... deprivation to Nelson of due process of law..." to the conclusion of said paragraph 5. In addition, the clause containing the Petitioner's prayer for relief was stricken in its language, "and directing Respondents to dismiss Case No. 78-283 with prejudice." An additional motion was made to strike the name of Lee G. Henderson, as Director of the Division of Community Colleges as a named Respondent. In view of the fact that the Director of the Division of Community Colleges is not responsible for the promulgation of rules and regulations of the State Board of Education, he is hereby deleted and stricken as a party Respondent. The Petitioner, Gregory Bruce Nelson, is an employee of the Florida Junior College, an institution governed by Chapter 230, Florida Statutes. Nelson holds a certificate issued under the terms and conditions of Rule 6A- 14.415, Florida Administrative Code. The pending Amended Petition for Revocation of Mr. Nelson's teaching certificate makes reference to the substantive basis for action as being found in Rule 6A-14.416, Florida Administrative Code, and the due process requirements for such revocation or suspension of the Petitioner's teaching certificate are ostensibly found in Rule 6A-14.417, Florida Administrative Code. The Petitioner's attack on the rules in question falls into two broad categories. The first category concerns the procedural requirements for the adoption of the rules and the second category is a contention on the part of the petitioner that the rules, as adopted, constitute invalid exercises of delegated legislative authority. The rules were adopted under the requirements of the then Administrative Procedures Act, Chapter 120, Florida Statutes. The adoption took place on December 3, 1974 and the rules became effective and operative on December 19, 1974. The controlling requirements for such adoption and effect and operation may be found in the former Administrative Procedures Act in operation in December 1974. Specifically, those provisions were Section 120.031 and Section 120.041,Florida Statutes. The Respondent in this cause met all conditions for the adoption of rules in terms of procedural requirements set forth in the aforementioned sections of the former Administrative Procedures Act. This can be determined by an examination of the Respondent's Exhibit #1, admitted into evidence which is a certified copy from the State of Florida, Department of State, of the promulgation and adoption of the rules in question on December 3, 1974, and of the filing of the rules with the Department of State on December 10, 1974, to become effective on the next day, December 19, 1974. Moreover, the rules were adopted by a public hearing which was noticed through publication in four newspapers of general circulation in the State of Florida on dates 10 to 30 days before the public hearing of December 3, 1974. Copies of the advertisements used in giving the notice may be found as the Respondent's Composite Exhibit #2, admitted into evidence. In view of the fact that the rules were adopted in accordance with the procedures set forth in the former Chapter 120, Florida Statutes, and were adopted by a public hearing properly noticed, it was not necessary to comply with the conditions of the new Administrative Procedures Act, Laws of Florida 1974, Chapter 74-310, which became effective January 1, 1975. In particular, this refers to the requirements set forth in Section 120.54, Florida Statutes, and Section 120.72, Florida Statutes, pertaining to Laws of Florida 1974, Chapter 74-310, effective January 1, 1975. Therefore, the Petitioner's claim of procedural violations as a basis for overturning Rules 6A-14.416 and 6A-14.417, Florida Administrative Code, is not well founded. The remaining question is whether or not the rules on their face constitute invalid exercises of delegated legislative authority within the meaning of the current Section 120.56, Florida Statutes. Turning to a consideration of the Respondent's Exhibit 41, it can be seen that in adopting and promulgating 6A-14.416, Florida Administrative Code, the State Board of Education made reference to Section 230.755, Florida Statutes as their general statement of authority and to the fact that the law being implemented was Section 230.759, Florida Statutes. Those provisions use the following language: "Section 230.755, Minimum standards for community colleges.-- The state board shall prescribe minimum standards which must be met before a community college is organized, acquired or operated, and which will assure that the purposes of the community college are attained. * * * Section 230.759 Employment of community college personnel.-- Employment of all personnel in each community college shall be upon recommendation of the president, subject to rejection for cause by the board of trustees and subject to the rules and regulations of the state board relative to certification, tenure, leaves of absence of all types, including sabbaticals, remuneration, and such other conditions of employment as the division of community colleges deems necessary and proper; and to policies of the board of trustees not incon- sistent with law." Section 230.755, Florida Statutes, is a general statement establishing minimum standards for the organization, acquisition or operation of the various community colleges in the state. it does not create legislative authority for the relocation or suspension of the teaching certificates of those individuals who are employed in the community college system In the State of Florida. Section 230.759, Florida Statutes prescribes the method by which individuals may be hired by the community college. However, that provision is not sufficiently broad enough in its language to authorize procedures for the revocation or suspension of the teaching certificates of those personnel employed by the community college in the State of Florida. One other background item should be examined in discussing the authority for promulgating Rule 6A-14.416, Florida Administrative Code. As was noted in the course of the hearing, the published accounts of Rule 6A-14.416, Florida Administrative Code contains a reference to Section 229,053(1), Florida Statutes, which was not found in the rule as originally filed with the State of Florida, Department of State. Consequently, it may be argued that Section 229.053(1), Florida Statutes, may not be utilized in supporting the promulgation and adoption of rules 6A-14.416, Florida Statutes, because it was left out of the official Rule 6A-14.416, Florida Administrative Code, filed with the Department of State. That provision, Section 229.053, Florida Statutes, reads as follows: Section 229.053 General powers of state board.-- The state board of education is the chief policy-making and coordinating body of public education in Florida. It has the general powers to determine, adopt or prescribe such policies, rules, regulations, or standards as are required by law or as it may find necessary for the improvement of the state system of public education. Except as otherwise provided herein it may, as it shall find appropriate, delegate its general powers to the commissioner of education or the directors of the divisions of the department. " Assuming for purposes of argument that Section 229.053(1), Florida Statutes may be properly attributed to Rule 6A-14.416, Florida Administrative Code, as an attempted statement of authority for the exercise of the powers found in the subject rule, the provision Section 229.053(1), Florida Statutes, could not authorize the exercise of the powers found in that rule; which rule attempts to allow for the revocation or suspension of a teaching certificate held by a member of a staff of the community college in the State of Florida. Section 229.053(1), Florida Statutes is a general statement of the powers of the state board of education, only. No other provisions of Chapter 230, Florida Statutes, were offered in support of Rule 6A-14.416, Florida Administrative Code. Nonetheless, a review of Part II of Chapter 230, Florida Statutes, dealing with community colleges, in existance at the time that the rule was adopted and promulgated, does not reveal any provision of that Part which would allow for the adoption of rules pertaining to penalties against the holders of certificates to teach in the community colleges of the State of Florida. Consequently, Rule 6A-14.416, Florida Administrative Code is an invalid exercise of delegated legislative authority within the meaning of Section 120.56, Florida Statutes, and is invalid in its entirety. Rule 6A-14.417, Florida Administrative Code, is a due process statement of procedure to implement the provisions of Rule 6A-14.416, Florida Administrative Code. Again, it has as its statement of authority found in the Respondent's Exhibit #1, admitted into evidence, the then existing provisions of Sections 230.755 and 230.759, Florida Statutes. That statement of authority is also found in the published compilation of rules made by the Department of State. For the reason that there exists no statement in Chapter 230, Florida Statutes, as it existed at the time that the Rule 6A-14.416, Florida Administrative Code was promulgated, that allows penalties to be placed against the certificate held by the community college teachers, there is likewise no authority to establish procedures for undertaking a consideration of probable cause to revoke or suspend and the subsequent hearing on revocation or suspension. The rationale in reaching this opinion is the same as was utilized in the consideration of Rule 6A-14.416, Florida Administrative Code. Therefore, Rule 6A-14.417, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority within the meaning of Section 120.56, Florida Statutes and the entire language of Rule 6A-14.417, Florida Administrative Code is invalid.
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
