00-002214 Eldon Sadler vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Monday, October 30, 2000.

Summary: Total compensation paid to Florida Retirement System employee is subject to retirement contribution requirements.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELDON SADLER, )

)

Petitioner, )

)

vs. ) Case No. 00-2214

)

DEPARTMENT OF MANAGEMENT SERVICES, )

DIVISION OF RETIREMENT, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

On October 4, 2000, a formal administrative hearing in this

case was held in Tallahassee, Florida, before Don W. Davis,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Larry E. Levy , Esquire

1828 Riggins Road

Tallahassee, Florida 32308

For Respondent: Larry D. Scott, Esquire

Division of Retirement

Cedars Executive Center, Building C

2639 Nor th Monroe Street

Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUE

The issue in the case is whether Eldon Sadler, Taylor County

Property Appraiser, (Petitioner) is required to enroll Connie

LaValle in the Florida Retirement System (FRS) for all of her

employment with the Taylor County Property Appraiser's Office

from June 1993 until the present.

PRELIMINARY STATEMENT

By letter dated February 18, 2000, the Division of

Retirement notified Petitioner that since an employee of

Petitioner's office, Connie LaValle, was receiving additional

compensation from Petitioner, beyond that paid Lavalle for work

in her permanent FRS position, the additional compensation would

have to be reported for retirement purposes and retro-active

retirement contributions would have to be paid to the Division of

Retirement (Respondent) by Petitioner's office.

Petitioner requested a formal administrative hearing.

Respondent forwarded the request to the Division of

Administrative Hearings, which scheduled and conducted the

proceeding.

At the hearing, Petitioner testified in his own behalf.

Respondent presented the testimony of one witness. Both parties

presented one joint composite exhibit in evidence. No transcript

of the final hearing was provided. Both parties did file

Proposed Recommended Orders and those proposed orders were

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Connie LaValle has been employed in Petitioner's office

as a permanent part-time employee since September 16, 1992, as a

"mapper." Pursuant to a contract, she has also been performing

additional mapping services for Petitioner since June 1993, for

which no contributions have been made to FRS. Contributions have

been made for LaValle's other part-time employment in the office.

2. Prior to June 2, 1993, LaValle and Petitioner spoke

regarding LaValle's performing services related to implementing a

Geographic Information System (GIS) in the event that Taylor

County decided to obtain such a system. As a consequence,

LaValle sought and obtained placement of her name on the

Department of Revenue's approved bidder's list. Placement on the

list is a prerequisite to entering into a contract with

Petitioner's office.

3. On June 2, 1993, Petitioner's office and LaValle entered

into a contract whereby LaValle would perform "mapping services

to aid in assessment." While not detailed as such in the written

contract, these services were related to the GIS mapping function

and were in addition to LaValle's existing part-time employment

in the office. The contract was renewed on May 30, 1996.

4. LaValle was not given any training for the tasks for

which she contracted, she was not required to follow daily or

weekly routines or schedules established in Petitioner's office,

she was given no instructions in the way that work was to be

performed, and Petitioner could not change methods used by

LaValle or otherwise direct her as to how to do the work.

5. LaValle did the contractual work at her convenience and

was not required to perform that work in the office or pursuant

to any schedule. She was paid for the work product as she

finished it. Payment under one contract resulted in a $60 per

map payment from Petitioner when the product was completed.

Under the renegotiated contract, she received $3 per parcel on

computerized maps. She was not guaranteed a minimum payment, nor

did she receive pension benefits, bonuses, paid vacation time, or

sick pay. Earnings pursuant to the contract were reported by

LaValle as self-employment income on form 1099.

6. The contract provided that neither Petitioner nor

LaValle could terminate the agreement absent 30 days notice to

the other party. In addition to furnishing her own work

location, work equipment, tables, engineering scales, computer

and other necessary equipment, LaValle also paid all related

expenses.

7. LaValle performed all contract work in her home.

Although not prohibited by terms of the contract, she did not

work for other entities.

8. Respondent, pursuant to an audit of retirement records

of Petitioner's office, determined that LaValle was performing

additional duties for Petitioner's office and receiving salary

for which no retirement contributions were paid. Petitioner was

notified by Respondent by letter dated August 10, 1999, that

LaValle previously filling a part-time regularly established

position, was now performing additional duties for the same

employer and was now considered to be filling a regularly

established position for her total employment. Petitioner was

informed that salary earned by LaValle for the additional duties

should have been reported and contributions paid to Respondent

for retirement benefits.

9. Petitioner maintains that LaValle is an independent

contractor with regard to additional duties and no retirement

contributions are due and payable.

10. Respondent has determined LaValle is not an independent

contractor. Respondent asserts that the additional duties are an

extension of her normal duties in her part-time position and

contributions for retirement benefits are due with regard to

compensation paid to her by Petitioner.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

12. Petitioner has the burden of establishing by a

preponderance of the evidence, entitlement to the relief sought.

Balino v. Department of Health and Rehabilitative Services , 348

So. 2d 349 (1st DCA 1977). Florida Department of Transportation

v. JWC Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981). In

this case, the burden has not been met.

13. Rule 60S-1.004(4)(c)1, Florida Administrative Code,

states:

A member filling a regularly established

position who performs additional duties for

the same employer is considered to be filling

a regularly established position for the

total employment and the employer shall make

the required retirement contributions.

14. Rule 60S-6.001(33), Florida Administrative Code,

defines independent contractor as:

[A]n 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 how it

shall be done. If the employer has the right

to exert such control, an employee-employer

relationship exists and the person is an

employee and not an independent contractor.

15. Not only did LaValle fail to appear and testify in this

proceeding, no work products of her contractual work were

presented to demonstrate any indicia of independent content and

control over the product. The very nature of a situation where a

part-time employee who is subject to control, direction and even

termination of that employment by the employer, demonstrates

ultimate control by the employer that belies the artifice of a

contract to provide additional compensation to the employee. The

evidence fails to establish that the supplemental payments to

LaValle, did not constitute "compensation" for purposes of

determining retirement benefits under the FRS. As stated by the

Florida Supreme Court in Cantor v.Cochran , 184 So. 2d 173, 174

(Fla. 1966), "independent contractor status . . . depends not on

the statements of the parties but upon all the circumstances of

their dealings with each other."

16. While Petitioner may have intended to retain LaValle as

an independent contractor and thereby avoid paying contributions

for her retirement benefits, the evidence is insufficient to

establish that relationship.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the State of Florida, Division of Retirement, enter a

final order finding that payments made to Connie LaValle for

additional duties from Petitioner's office constitute salary for

additional employment requiring payment of retirement

contributions by Petitioner.

DONE AND ENTERED this 30th day of October, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administrative Heari ngs

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of October, 2000.

COPIES FURNISHED:

Levy E. Levy, Esquire

1828 Riggins Road

Tallahassee, Florida 32308

Larry D. Scott, Esquire

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

Ron Poppell, Interim Director

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

Emily Moore, Chief Legal Counsel

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

Bruce Hoffmann, General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order must be filed with the agency that will

issue the final order in this case.