04-004020 Madonna Sue Jervis Wise vs. Department Of Management Services, Division Of Retirement Status: Closed Recommended Order on Monday, March 28, 2005.

Summary: Amended as to paragraph 14 of Findings of Fact.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MADONNA SUE JERVIS WISE, )

)

Petitioner, )

)

vs. ) Case No. 04 - 4020

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF )

RETIREMENT, )

)

Respondent. )

)

AMENDED RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing in this proceeding on January 25, 2005,

in Dade City, Florida, on behalf of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Pe titioner: Madonna Sue Jervis Wise, pro se

6245 Frontier Drive

Zephyrhills, Florida 33540

For Respondent: Thomas E. Wright, Esquire

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399 - 0950

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner is

entitled to creditable service in the Florida Retirement System

for service in the Florida Virtual School from Septem ber 15,

2001, through June 30, 2002.

PRELIMINARY STATEMENT

By letter dated June 23, 2004, Respondent denied

Petitioner's request for creditable service. Petitioner

requested an administrative hearing, and Respondent referred the

matter to DOAH to conduct the hearing.

At the hearing, Petitioner testified in her own behalf and

submitted 12 exhibits for admission into evidence. Respondent

presented the testimony of two witnesses and submitted ten

exhibits for admission into evidence. The ALJ granted

Respon dent's request for Official Recognition of

Subsections 121.021(52) and (53), Florida Statutes (2001), and

Florida Administrative Code Rules 60S - 1.004 and 6.001. Pursuant

to the agreement of the parties, Petitioner submitted three

late - filed exhibits on F ebruary 8, 2005.

The identity of the witnesses and exhibits and the rulings

regarding each are reported in the official record of the

hearing. Neither party requested a transcript of the record.

Petitioner and Respondent timely filed their respective p roposed

recommended orders on February 25 and 21, 2005.

FINDINGS OF FACT

1. Petitioner is a regular class member of the Florida

Retirement System (FRS). On October 23, 2003, Petitioner

entered the Deferred Retirement Option Program (DROP) and left

her employment on June 30, 2004.

2. Petitioner worked most of her career as a teacher and

an administrator for the Pasco County School Board (School

Board). The School Board is a local education association (LEA)

and a local agency employer within the meani ng of Subsection

121.021(42)(a), Florida Statutes (2001).

3. Beginning with the 2001 - 2002 school year, Petitioner

undertook additional employment by working in the Florida

Virtual School (FVS) in accordance with former Section 228.082,

Florida Sta tutes (2000). 1 Petitioner undertook additional

employment to increase the average final compensation (AFC) that

Respondent uses to calculate her retirement benefits.

4. From September 15, 2001, through June 30, 2004,

Petitioner worked for the LEA and s erved in the FVS. During the

2001 - 2002 school year, Petitioner was a full - time employee for

the LEA and also served part - time in the FVS. Beginning with

the 2002 - 2003 school year, Petitioner served full - time in the

FVS and also worked for the LEA during the summer.

5. The LEA paid Petitioner annual salaries as a full - time

employee for all relevant school years and made the necessary

contributions to the FRS. The AFC includes compensation

Petitioner received from the LEA, and that compensation is not

a t issue in this proceeding.

6. With one exception, the AFC includes the compensation

Petitioner received for service in the FVS. The AFC does not

include $6,150 (the contested amount) that Petitioner earned

during her first year of service in the FVS fro m September 15,

2001, through June 30, 2002 (the contested period). 2

7. Sometime prior to April 2004, Petitioner requested that

Respondent include the contested amount in her AFC. In a one -

page letter dated April 6, 2004 (the preliminary denial letter),

Respondent notified Petitioner that Respondent proposed to deny

the request. The grounds for denial stated that Petitioner

earned the contested amount in a temporary position and that FVS

did not join the FRS until December 1, 2001. In relevant part,

the preliminary denial letter states:

. . . you filled a temporary instructional

position as an adjunct instructor whose

employment was contingent on enrollment and

funding pursuant to Section 60S -

1.004(5)(d)3, F.A.C., copy enclosed. As

such, you are ineligi ble for . . . FRS . . .

participation for the time period in

question. The School joined the FRS on

December 1, 2001 and past service was not

purchased for you since you filled a

temporary position.

Effective July 1, 2002, you began filling a

regularly e stablished position with the

Florida Virtual High School and were

correctly enrolled in FRS. The School has

reported your earnings from July 1, 2002, to

the present to the FRS.

Respondent's Exhibit 2 (R - 2).

8. A two - page letter dated June 23, 2004 (the denial

letter), notified Petitioner of proposed final agency action

excluding the contested amount from her AFC. The only ground

for denial stated that Petitioner earned the contested amount in

a temporary position. The denial omits any statement t hat FVS

did not join the FRS until December 1, 2001. However, the

denial letter includes a copy of the preliminary denial letter

and is deemed to include, by reference, the stated grounds in

the preliminary denial letter.

9. In relevant part, the denia l letter states:

By letter dated April 6, 2004 (copy

enclosed). . . [Respondent] advised you

filled a temporary instructional position as

an adjunct instructor from September 15,

2001 through June 30, 2002.

We have reviewed the information submitted

in yo ur recent letter and maintain our

position that you were an adjunct instructor

from September 2001 through June 2002,

pursuant to Section 60S - 1.004(5)(d)3, F.A.C.

(copy enclosed). Your employment with the

Florida Virtual School during the time

period in q uestion was contingent on

enrollment and funding. Since you filled a

temporary position, the School was correct

in excluding you from the [FRS].

This notification constitutes final agency

action. . . .

R - 3 at 1.

10. The legal definition of a temporary position varies

depending on whether the employer is a state agency or a local

agency. If the employer is a state agency, a position is

temporary if the employer compensates the position from an

account defined as "an other personal services (OPS) accoun t" in

Subsection 216.011(1)(dd), Florida Statutes (2001) (OPS

account). If the employer is a local agency, a position is

temporary if the position will exist for less than six

consecutive months; or as otherwise provided by rule.

§ 121.021(53), Fla. Sta t. (2001). The distinction is based, in

relevant part, on the practical reality that local agencies do

not maintain OPS accounts for "the fiscal affairs of the state."

§ 216.011(1), Fla. Stat. (2001).

11. The employer that paid Petitioner the contested amount

was not an LEA. Three different employers may have been

responsible for payment of the contested amount.

12. Some evidence supports a finding that the employer was

the Board of Trustees of FVS (the Board). Contracts of

employment for service in FVS identify the employer as the

Board. 3 The Board has statutory authority over personnel serving

FVS and has statutory authority to govern FVS.

13. Other evidence supports a finding that the employer

that paid Petitioner the contested amount was FVS . The record

evidence identifies the employer that enrolled in FRS and made

contributions on behalf of Petitioner as FVS.

14. Finally, there is evidence that the Orange County

School Board, acting as the statutorily designated fiscal agent

for FVS (the fiscal agent), was the employer that paid

Petitioner the contested amount. The contested amount was paid

from funds administered by the fiscal agent in the name of FVS.

The address of record for FVS is that of the Orange County

School Board. FVS began in 1997 as a cooperative effort between

the school boards of Orange County and Alachua County, Florida.

Respondent's Exhibits 5 and 7.

15. The Board, FVS, and the fiscal agent each exemplify

distinct characteristics of a state agency defined in Subse ction

216.011(1)(qq), Florida Statutes (2001). The Board consists of

seven members appointed by the Governor for four - year staggered

terms. The Board is a public agency entitled to sovereign

immunity and has authority to promulgate rules concerning FVS.

Board members are public officers and bear fiduciary

responsibility for FVS. The Board has statutory authority to

approve FVS franchises in each local school district.

§§ 228.082, Fla. Stat. (2000) and 1002.37, Fla. Stat. (2001).

16. FVS is administra tively housed within an office 4 of the

Commissioner of Education, as the Head of the Department of

Education (Commissioner). The fiscal year of FVS is the state

fiscal year. Local school districts cannot limit student access

to courses offered statewide through FVS. 5

17. The fiscal agent of FVS is a state agency. The fiscal

agent receives state funds for FVS and administers those funds

to operate FVS for students throughout the state.

18. The Board, FVS, and the fiscal agent each satisfy

judicial d efinitions of a state agency pursuant to "territorial"

and "functional" tests discussed in the Conclusions of Law.

Each agency operates statewide in accordance with a statutory

mandate to serve any student in the state. Each serves students

in public and private schools; in charter schools; in home

school programs; and in juvenile detention programs. Unlike an

LEA, the scope of authority and function of the employer that

paid the contested amount to Petitioner was not circumscribed by

county or other loc al boundaries; regardless of whether the

employer was the Board, FVS, or the fiscal agent (collectively

referred to hereinafter as the employer).

19. The employer did not pay the contested amount from an

OPS account. The fiscal agent for FVS is the pres umptive

repository of funds appropriated for FVS. The fiscal agent is

organically structured as a local agency even though it

functions as a state agency in its capacity as fiscal agent.

Unlike a state agency, an organic local agency does not maintain

an OPS account, defined in Subsection 216.011(1)(dd), Florida

Statutes (2001), for the "fiscal affairs of the state."

20. The legislature funded FVS during the contested period

in lump sum as a state grant - in - aid provided in a line item

appropriation purs uant to Subsection 228.082(3)(a), Florida

Statutes (2000). The legislature subsequently began funding of

FVS through the Florida Education Finance Program (FEFP). Each

FVS student with six - credit hours required for high school

graduation is included as a full - time equivalent student for

state funding. Each student with less than six - credit hours

counts as a fraction of a full - time equivalent student. A local

LEA cannot report full - time equivalent student membership for

courses that students take through FVS unless the LEA is an

approved franchise of FVS and operates a virtual school. As

student enrollment in FVS increased, the legislature changed the

funding formula to avoid paying twice for students in FVS; once

to fund FVS and again to fund local LEAs that were authorized to

earn FTE funding for students enrolled in FVS.

21. The employer that paid the contested amount to

Petitioner was a state agency that did not compensate Petitioner

from an OPS account defined in Subsection 216.011(1)(dd),

Florida S tatutes (2001). Petitioner did not earn the contested

amount in a temporary position within the meaning of Subsection

121.021(53)(a), Florida Statutes (2001), and Florida

Administrative Code Rule 60S - 6.001(62).

22. Respondent argues that Petitioner ear ned the contested

amount in a temporary position in a local agency defined in

Subsection 221.021(42), Florida Statutes (2001), and Florida

Administrative Code Rule 60S - 6.001(36). A temporary position in

a local agency is generally defined to mean a positi on that will

last less than six months, except as otherwise provided by rule.

By rule, Respondent defines a temporary position to include

temporary instructional positions that are established with no

expectation of continuation beyond one semester. Fla. Admin.

Code R. 60S - 1.004(5)(d)3. Respondent supports its argument with

limited documentary evidence (the documents).

23. The documents consist of several items. An undated

FVS Information Sheet indicates the employer started Petitioner

as an adjunct in structor on September 15, 2001. An FVS

memorandum dated several years later on March 16, 2004,

indicates Petitioner started an adjunct position on September 6,

2001, and includes a parenthetical statement that it was

seasonal employment. 6 The employer pa id Petitioner $3,150 during

2002 as miscellaneous income and reported it to the Internal

Revenue Service (IRS) on a "Form 1099 - Misc." An undated letter

of intent for the 2002 - 2003 school year, which requests

submission before March 8, 2002, indicates that Petitioner

intended to continue her adjunct employment status and requested

a full - time position if one became available. 7

24. Use of labels such as "adjunct" to describe employment

status during the contested period would be more probative if

the duti es Petitioner performed were limited to the duties of a

part - time, on - line instructor. As discussed hereinafter,

Petitioner earned the contested amount while occupying a dual -

purpose position in which she performed both the duties of an

instructor and sig nificant other duties unrelated to those of an

instructor. The trier of fact would be required to disregard a

substantial body of evidence to find that Petitioner's position

was limited to that of a part - time, on - line instructor.

25. The IRS requires tax payers to report miscellaneous

income paid to independent contractors on Form 1099 - Misc.

Neither the denial letter nor the preliminary denial letter

includes a statement that Petitioner occupied a non - employee

position as an independent contractor.

26. Judicial decisions discussed in the Conclusions of Law

give little weight to the use of IRS Form 1099 - Misc in cases

such as this one where there is little other evidence of

independent contractor status or where the evidence establishes

an employer - employ ee relationship. The record evidence

discussed hereinafter shows that Petitioner and her employer

enjoyed a continuing employment relationship within the meaning

of Florida Administrative Code Rule 60S - 6.001(32)(f).

27. Respondent was not a party to th e employment contract

and did not witness the employment relationship between

Petitioner and her employer. Nor did Respondent call a witness

from FVS who was competent to testify about events that occurred

during the contested period.

28. The testimony of Petitioner is supported by the

totality of evidence. In relevant part, Petitioner disclosed to

her supervisors at FVS at the time of her employment that she

sought employment to enhance her retirement benefits. The

proposed exclusion of the contested amount from the AFC is

inconsistent with a material condition of employment.

29. Respondent asserts that the documents satisfy

requirements for notice and documentation of a temporary

position in Florida Administrative Code Rule 6.1004(5). The

rule requ ires an employer to notify an employee at the time of

employment that the employee is filling a temporary position and

cannot participate in the FRS; and to document the intended

length of the temporary position. However, the terms of the

documents from R espondent are ambiguous and insufficient to

provide the required notice and documentation.

30. The documents did not expressly notify Petitioner she

was filling a temporary position that did not qualify as a

regularly established position in the FRS. N one of the

documents use the term "temporary" or "temporary position." The

notice and documentation requirements of the rule must be

satisfied, if at all, by implication from terms on the face of

the documents such as "adjunct," "adjunct position," and

"a djunct employment status."

31. Unlike the term "temporary position," neither the

legislature nor Respondent defines the term "adjunct." One of

the several common and ordinary uses of the term "adjunct" can

mean, "Attached to a faculty or staff in a tempo rary . . .

capacity." The American Heritage Dictionary of the English

Language , at 21 - 22 (4th ed. Houghton Mifflin Company 2000).

32. The employer used an undefined term such as "adjunct"

as an ambiguous euphemism for a temporary position. The

ambig uity of the term "adjunct" is underscored when each

document from Respondent is considered in its entirety.

33. The letter of intent form requested Petitioner to

indicate whether she intended to continue her "adjunct

employment status" and whether she w ould be interested in "a

full - time position." The form did not refer to either a

"temporary position," or a "part - time position." Petitioner

reasonably inferred that "adjunct employment status" was the

part - time alternative to "a full - time position." Th e inference

was consistent with the announced purpose for serving in FVS and

the evidence as a whole. Respondent also does not define part -

time employment to exclude a regularly established position.

34. The FVS utilized different contracts for adjunct and

part - time instructors. The contracts of record pertaining to

Petitioner are not contracts for adjunct instructors (adjunct

contracts). The contracts are annual contracts.

35. Even if Petitioner were to have signed a contract for

adjunct instructor s, the contract used for adjunct instructors

was ambiguous. In relevant part, the adjunct contract included

a caption in the upper right corner labeled, "Terms of Agreement

for Part - Time Instructional Employment." (emphasis supplied)

As previously found , a part - time position may be a regularly

established position. Use of the term "part - time employment" on

a contract for an adjunct instructor supported a reasonable

inference that the employer was using the terms "adjunct" and

"part - time" synonymously to differentiate part - time employment

from full - time employment.

36. The employer required Petitioner, unlike adjunct

instructors, to sign in on an instructor log sheet and to attend

training sessions and staff meetings. Petitioner attended

training sess ions on September 8 and 22, and October 24, 2001.

Petitioner attended other training sessions on February 26

and 27, 2002, and on March 27 and April 10, 2002. The employer

also issued office equipment to Petitioner that the employer did

not issue to adju nct instructors.

37. Petitioner performed significant duties in addition to

those required of a part - time instructor. Petitioner wrote

grant applications and assisted in writing a procedures manual

for FVS. By November 30, 2001, Petitioner had complet ed and

submitted a federal "Smaller Learning Communities Grant" for

$230,000. On December 27, 2001, Petitioner began working on the

procedures manual, finalized the work on January 3, 2002, and

was listed in the credits in the manual.

38. The additiona l duties assigned to Petitioner continued

through the second semester of the contested period. On

February 26 and 27, 2002, FVS asked Petitioner to develop their

"FCAT" course for the eighth grade. Petitioner wrote and

developed the course. By May 30, 2 002, Petitioner had written

and submitted three more grant applications and was a member of

a team that developed strategies for additional fundraising.

For the 2002 - 2003 school year, Petitioner entered into an annual

contract for a full - time non - instruct ional position, as Grants

Manager, and a separate contract for employment in a part - time

instructor position. Each contract was terminable only for

"good cause" within the meaning of Subsection 1002.33(1)(a),

Florida Statutes (2002).

39. The expectation of continued employment is further

evidenced by the general business experience of FVS leading up

to the contested period. In the 1997 - 1998 school year,

approximately 25 students were enrolled statewide in FVS. In

the next three years, enrollment grew to 5,564. Professional

staff grew from 27 teachers to 54 full - time teachers.

Legislative funding was adequate for the growth FVS experienced,

and the legal contingency of enrollment and funding was not a

realistic condition of continued employment.

40. Th ere was nothing temporary in the expectations of the

employer and Petitioner during the contested period. FVS staff

had legitimate business reasons to expect continued student

enrollment and legislative funding during the contested period.

The employer a lso had legitimate reasons to expect continued

employment of Petitioner based on the individual experience the

employer enjoyed with Petitioner, the ongoing and continuous

nature of Petitioner's work, and the significant additional

duties assigned to Petit ioner. The employer, in fact, employed

Petitioner continuously after the contested period.

41. When FVS enrolled in the FRS on December 1, 2001, some

employees purchased past credit. Petitioner was not on the list

of employees for whom past credit was purchased. That omission

is consistent with Petitioner's understanding that she was

already receiving FRS credit. By rule, Respondent required the

employer to make an affirmative disclosure that Petitioner did

not occupy a position qualifying for FRS cre dit.

42. After FVS enrolled in the FRS on December 1, 2001, FVS

was required to make contributions to the FRS on behalf of

Petitioner for approximately 208 days during the remainder of

the contested period. FVS did not make the required

contributions to the FRS.

CONCLUSIONS OF LAW

43. DOAH has jurisdiction over the parties and the subject

matter in this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

(2004). DOAH provided the parties with adequate notice of the

administrative hearing.

44. Petitione r has the burden of proving by a

preponderance of the evidence that Respondent should include the

contested amount in the AFC. § 120.57(1)(j) and (k), Fla. Stat.

(2001); Florida Department of Transportation v. J.W.C. Co. , 396

So. 2d 778 (Fla. 1st DCA 1981 ); Balino v. Department of Health

and Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977;

and Young v. Department of Community Affairs , 625 So. 2d 831

(Fla. 1993). The decision of the employer to treat Petitioner

as a temporary employee during the contested period established

the status quo. Petitioner has the burden of showing that she

earned the contested amount while occupying a regularly

established position. Cf. The Board of Trustees of the

Northwest Florida Community Hospital v. Department of Management

Services, Division of Retirement , 651 So. 2d 170, 172 (Fla. 1st

DCA 1995)(hospital's treatment of individual as independent

contractor established the status quo and placed burden on

Division to prove individual was an employee).

45. The st atutory definition of a temporary position

varies depending on whether an employer is a state agency or a

local agency employer. In relevant part, Subsection

121.021(53), Florida Statutes (2001), provides:

"Temporary position" is defined as follows:

. . .

(a) In a state agency, the term means an

employment position which is compensated

from an other personal services (OPS)

account, as provided for in s.

216.011(1)(d).

(b) In a local agency, the term means an

employment position which will exist for

less than 6 consecutive months, or other

employment position as determined by rule of

the division, regardless of whether it will

exist for 6 consecutive months or longer.

46. Subsection 121.021(32), Florida Statutes (2001),

defines the term "state agency" to mean the Department of

Management Services (DMS). 8 That definition would lead to the

absurd result that only DMS is a state agency and only temporary

employees at DMS can fill temporary positions in a state agency.

All other state agencies wou ld be local agencies, and temporary

employees in those agencies would fill temporary positions in a

local agency.

47. The legislature does not intend its enactments to have

absurd results. When the literal interpretation of statutory

terms frustrates l egislative intent, the literal meaning must

yield to legislative intent for the statute as a whole.

Vildibill v. Johnson , 492 So. 2d 1047, 1049 (Fla. 1986);

Department of Professional Regulation, Board of Dentistry v.

Florida Dental Hygienist Association, Inc. , 612 So. 2d 646, 654

(Fla. 1st DCA 1993); cf. State v. Perez , 531 So. 2d 961, 963

(Fla. 1988)(rejecting literal meaning leading to illogical

result).

48. The term "state agency" is defined in Section 216.011,

Florida Statutes (2001). The legislatur e refers to "Section

216.011" in defining a temporary position as well as a regularly

established position. The legislature apparently intended to

rely on "Section 216.011" in defining both terms, and reliance

on "Section 216.011" to define a state agency is consistent with

legislative intent. The manifest intent of the legislature for

the statute as a whole prevails over the specific definition of

a state agency in Subsection 121.021(32), Florida Statutes

(2001). Schoettle v. State, Department of Admini stration,

Division of Retirement , 513 So. 2d 1299 (Fla. 1st DCA 1987).

49. Subsection 216.011(1)(qq), Florida Statutes (2001),

defines a "state agency," in relevant part, to mean a

"board . . . of the executive branch of state government." The

Board th at governs FVS is a board of the executive branch of

state government. 9 § 1002.37(1)(a), Fla. Stat. (2004); accord

§ 228.082(1)(a), Fla. Stat. (2000).

50. The Board reports directly to the Governor, and FVS is

administratively housed in an office of t he Commissioner, as the

Head of the Department of Education. § 20.15(2), Fla. Stat.

(2001). In comparison, a board of trustees of a community

college that is not part of the executive branch of government

is not a state agency. Compare Caldwell v. Board of Trustees of

Broward Community College , 858 So. 2d 1199, 1200 - 1201 (Fla. 4th

DCA 2003)(for the stated proposition) with Lindawood v. Office

of the State Attorney, Ninth Judicial Circuit of Florida , 731

So. 2d 829, 832 (Fla. 5th DCA 1999)(assistant state attorney is

employee of state agency).

51. The Board is a "public agency" entitled to sovereign

immunity pursuant to Section 768.28, Florida Statutes (2001).

§ 1002.37(2), Fla. Stat. (2001); accord § 228.082(2), Fla. Stat.

(2000). Section 768.28, F lorida Statutes (2001), does not

define the term "public agency." However, the statute defines

the phrase "state agencies and subdivisions" to include

"independent establishments of the state, including state

university boards of trustees." § 768.28(2), Fla. Stat.

(2001). 10

52. The Board is established to govern a state high

school 11 in a manner similar that by which the Florida

Constitution established the Board of Governors to govern the

state university system. Compare § 1002.37(2), (3), and (6),

F la. Stat. (2001) with Art. IX, § &(d), Fla. Const. (each

describing the operational, management, and other

responsibilities of each board). 12 The former Board of Regents,

the predecessor to the Board of Governors, represented to the

Supreme Court that it was a state agency. Patsy v. Board of

Regents of the State of Florida , 457 U.S. 496, 102 S. Ct. 2557,

73 L. Ed. 2d 172 (1982). 13 A constitutionally created board,

analogous to the Board of Governors, has been held to be a state

agency. Adlington v.Spoon er , 743 So. 2d 1195 (Fla. 4th DCA

1999)(Parole Commission, created in Art. IV, § 8(c), Fla.

Const., is a state agency).

53. Several judicial decisions have distinguished a state

agency from a local agency. The judicial tests used to

distinguish the two types of agencies are persuasive.

54. Courts generally distinguish a state agency from a

local agency by either a territorial test or a functional test.

The territorial test considers whether the agency has power to

operate outside the limits of one c ounty. The functional test

considers whether the agency serves a public purpose and

benefits the citizens of Florida in general. Compare Orlando -

Orange County Expressway Authority v. Hubbard Construction Co. ,

682 So. 2d 566 (Fla. 5th DCA 1996)(territoria l test showed

expressway authority is state agency because it has authority to

operate in more than one county) and Pepin v. Division of Bond

Finance , 493 So. 2d 1013 (Fla. 1986)(functional test showed

intra - county part of statewide system served a public purpose

and benefited the citizens of the state) with Booker Creek

Preservation, Inc. v. Pinellas Planning Council , 433 So. 2d 1306

(Fla. 2d DCA 1983)(territorial test showed planning council was

a unit of local government and not a state agency because

co uncil had authority within one county) and Rubinstein v.

Sarasota County Public Hospital Board , 498 So. 2d 1012 (Fla. 2d

DCA 1986)(territorial test showed hospital board is not a state

agency because jurisdiction is confined to one county).

55. Under eith er the territorial test or the functional

test, the employer satisfies the judicial definition of a state

agency; regardless of whether the employer is the Board, FVS, or

the fiscal agent. The employer has power to operate statewide

for a public purpose t hat benefits the citizens of the state in

general. See , e.g. , §§ 1001.42(15)(a); 1002.02(6)(a);

1002.23(2)(d); 1002.37(1)(d), (f), (g), (i), (3), and (4);

1003.02(1)(i); 1003.52(4); § 1004.04(4); 1007.27(1); and

1011.61(1)(c)b III, Fla. Stat. (2001).

5 6. Contingencies of enrollment and funding are inapposite

to employment by a state agency. Employees of a state agency

fill either a regularly established position or an OPS position.

Petitioner was not paid from an OPS account. Petitioner filled

a reg ularly established position in a state agency as a part -

time employee during the contested period. Cf. Department of

Administration, Division of Retirement v. Albanese , 445 So. 2d

639, 641 (Fla. 1st DCA 1984)(state employees hold either a

regularly establ ished position or an OPS position).

57. If the employer were a local agency, the preponderance

of evidence shows that Petitioner did not fill a temporary

position with a local agency. Petitioner had a reasonable

expectation of continued employment base d on an ongoing and

continuous relationship that included duties significantly

greater than those of a part - time instructor.

58. The legal contingency that insufficient enrollment and

funding for FVS would preclude continuing employment was neither

a r ealistic contingency nor a material condition of employment. 14

Prior to the contested period, enrollment in FVS had grown from

25 students to 5,564 in three years, and the number of full - time

instructors serving FVS had doubled. Legislative funding was

a dequate for the growth the school experienced.

59. The evidence demonstrates an expectation of continued

employment before the employer enrolled in FRS on December 1,

2001. Cf. Fla. Admin. Code R. 60S - 6.001(32)(f)(distinguishing

an employee from an in dependent contractor on the basis of a

continuing relationship). The employer acted with apparent

alacrity to assign significant additional duties to Petitioner

and enjoyed immediate benefits from Petitioner's job

performance. Petitioner wrote grants, pa rticipated in the

development of an FVS procedures manual, and met with staff in

strategy sessions in the first 75 days of service in FVS.

60. It is unlikely the employer had no expectation of a

continuing employment relationship before employing Petitio ner

but fortuitously discovered a proverbial "diamond in the rough"

in the 75 days Petitioner completed and submitted the first

application for a federal grant on November 30, 2004. A finding

based on serendipity would require some measure of credulity.

61. The preponderance of evidence demonstrates an

expectation of continued employment throughout the contested

period. The employer, in fact, continued the employment

relationship with Petitioner for several years. Petitioner's

position did not end wit h a particular task, but spanned legal

interruptions in school terms when other employees enjoyed

regular holidays. 15

62. The arrangement by which Petitioner worked during the

contested period in a part - time position with the employer and

in a full - time p osition with the LEA was, inferentially, part of

an exchange program maintained by the Board. § 1002.37(2)(f)2,

Fla. Stat. (2001); accord § 228.082(2)(e)2, Fla. Stat. (2000).

In relevant part, persons employed by the Board for service in

FVS are either l oaned to or exchanged with persons employed by

local agencies. The legislature expressly mandates that such

personnel "shall be deemed to have no break in creditable or

continuous service or employment" while they are in the exchange

program. Id.

63. The foregoing expression of legislative intent

embodies a longstanding practice in state education. Since

1961, employment service in the Department of Education has not

interrupted the continuity of employment service in an LEA.

Op. Atty. Gen., 061 - 41, March 13, 1961.

64. The FVS is administratively housed in the Department

of Education. Petitioner's service in FVS did not interrupt her

continuity of FRS service.

65. Even if no formal exchange program were to have

existed, the relevant expression o f legislative intent is

instructive for the purpose of determining whether the

legislature intended instructional staff in LEAs, including

Petitioner, to suffer an interruption in creditable service

while they served FVS. The manifest intent of the legisl ature

prevails over the literal import of specific terms of the

enabling legislation. Schoettle , 513 So. 2d at 1301. Use of a

job title such as "adjunct" cannot frustrate legislative intent

to ensure that those serving FVS will not suffer an interruption

in creditable service. Cf. Hillsborough County Hospital

Authority v. State, Department of Administration, Division of

Retirement , 495 So. 2d 249, 253 (Fla. 2d DCA 1986)(in dicta

stating that job labels such as "pool nurses" cannot be used to

deprive nurs es of benefits of FRS).

66. Use of the term "adjunct" was ambiguous and inadequate

to satisfy the notice and documentation requirements in Florida

Administrative Code Rule 60S - 1.004(5). In relevant part, use of

the term "adjunct" as an alternative to a f ull - time position and

use of the term "adjunct" on contracts for part - time employment

of instructors, individually and collectively, created

ambiguity. See New Amsterdam Casualty Company v. Addison , 169

So. 2d 877, 880 (Fla. 2d DCA 1964)(document must be construed in

its entirety in determining the intent of the parties).

67. The employer authored each of the ambiguous documents.

Respondent urges the ALJ to construe ambiguous terms against

Petitioner. It is well settled that ambiguous terms in a

docum ent must be construed against the author of the document.

The absence of the author as a party and witness in this

proceeding does not obviate the rule of construction. Century

Village, Inc. v. Wellington, E, F, K, L, H, J, M, & G,

Condominium Associatio n , 361 So. 2d 128, 133 (Fla. 1978). See

also Alternative Development, Inc. v. St. Lucie Club and

Apartment Homes Condominium Association, Inc. , 608 So. 2d 822,

825 (4th DCA 1992); Enegren v. Marathon Country Club Condominium

West Association, Inc. , 525 So . 2d 488, 490 (Fla. 3d DCA 1988);

Santa Rosa BBFH, Inc. v. Island Echos Condominium Association ,

421 So. 2d 534 (Fla. 1st DCA 1982); Addison , 169 So. 2d at 885.

68. The omission of adequate notice and documentation

required by rule is a tacit representati on that Petitioner

filled a regularly established position and was entitled to FRS

benefits. That representation is a mistake of fact that is

contrary to the condition now asserted by the state. Petitioner

relied on the tacit representation and changed h er position in

reliance on that representation. The judicial doctrine of

equitable estoppel precludes Respondent from now denying

benefits to Petitioner. See , e.g. , Kuge v. State, Department of

Administration, Division of Retirement , 449 So. 2d 389, 391

(Fla. 3d DCA 1984)(Division of Retirement estopped by

representations of Department of Revenue). Cf. , Warren v.

Department of Administration , 554 So. 2d 568, 570 (Fla. 5th DCA

1989)(Department of Administration estopped from denying

insurance benefits to state employee); Salz v. Department of

Administration, Division of Retirement , 432 So. 2d 1376, 1378

(Fla. 3d DCA 1983)(Division of Retirement estopped from denying

teacher right to purchase credit for eight years of service in

foreign private school). 16

69. Apart from the judicial doctrine of estoppel,

Respondent cannot exercise agency discretion in a manner that is

inconsistent with its own rule that requires the employer to

provide adequate notice and documentation that Petitioner was

filing a tempora ry position. The exercise of agency discretion

in a manner that is inconsistent with a valid, existing rule is

subject to remand upon judicial review. Compare

§§ 120.68(7)(e)2 and 120.68(7)(e)3, Fla. Stat. (2004). It would

be improvident to issue an ord er that is subject to remand.

70. The IRS requires employers to use Form 1099 - Misc to

report income earned by an independent contractor. Neither the

preliminary denial letter nor the denial letter included a

statement that Petitioner was an independent contractor. The

terms "independent contractor" and "temporary position" are

defined as separate and distinct terms in Respondent's rules.

Respondent cannot deny the request for inclusion of the

contested amount based on grounds for which Petitioner had n o

notice prior to the administrative hearing. To do so, would

deprive Petitioner of fundamental due process and frustrate the

purpose of Chapter 120, Florida Statutes (2004).

71. The employer's use a Form 1099 - Misc is not persuasive

evidence that Petitio ner earned the contested amount while

occupying a temporary position. Form 1099 - Misc is entitled to

little weight without other evidence of temporary status or

where other evidence establishes an employment relationship.

Water - Pure Systems, Inc. v. Commi ssioner of Internal Revenue , 85

T.C.M. 934 (2003); Veterinary Surgical Consultants, P.C. v.

Commissioner of Internal Revenue , 85 T.C.M. 901 (2003).

72. Even if the employer were to have originally intended

Petitioner to be a temporary employee, the int ention of the

parties is not the sole determinant. The fulcrum of decision

includes all of the facts and circumstances surrounding the

relationship between the parties. Cf. Northwest Florida

Community Hospital , 651 So. 2d at 172 (distinction between

empl oyee and independent contractor depends on all of the facts

and circumstances rather than the intent of the parties). For

reasons previously stated and not belabored here, all of the

facts and circumstances show that the relationship between

Petitioner an d the employer was an ongoing and continuing

relationship with significant duties in addition to those of a

part - time, on - line instructor.

73. A determination of whether Petitioner earned the

contested amount in a temporary position is a factual

determi nation that is the exclusive province of the trier of

fact. Such a determination is not one that is infused with

agency expertise. Cf. And Justice For All, Inc. v. Florida

Department of Insurance , 799 So. 2d 1076, 1078 (Fla. 1st DCA

2001)(construing cont ractual obligations does not require

special agency expertise); Northwest Florida , 651 So. 2d at

173(determination of whether person is employee or independent

contractor is factual issue); Schoettle , 513 So. 2d 1299, 1301

(Fla. 1st DCA 1987)(teacher was e ntitled to credit in FRS for

years teaching in foreign school).

74. Respondent's reliance on a common and ordinary meaning

of the term "adjunct" to define the statutory term "temporary

position" obviates the maxim that great deference should be

given to an agency's interpretation of a statute. Schoettle ,

513 So. 2d at 1301. Statutory construction is ultimately the

province of the judiciary. Id.

75. Petitioner did not serve FVS during the contested

period in a position analogous to positions that ha ve been held

to be temporary. Petitioner did not enjoy a less rigorous

schedule than part - time instructors occupying a regularly

established position. Petitioner was not entitled to refuse to

work when called to work, did not suffer any breaks in service ,

did not lose her position when her work ended, and was not

permitted to depart from course requirements or attendance

schedules established by the School. Compare Rayborn v.

Department of Management, etc. , 803 So. 2d 747 (Fla. 3d DCA

2001) and Hillsboro ugh County Hospital , 495 So. 2d at 249

(discussing the characteristics that make pool - nurses either

temporary employees or independent contractors).

76. Petitioner is not entitled to include in her AFC

compensation earned for 77 days before the employer e nrolled in

the FRS on December 1, 2001. Employment by an employer that

does not participate in the FRS does not constitute creditable

service. Cf. Boggs v. Department of Management Services , 823

So. 2d 297 (Fla. 1st DCA 2002)(employee is not entitled to FRS

benefits when employer does not participate in FRS).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent enter a final order including

in the AFC that portion of the contested amount earned on and

after December 1, 2001, and excluding the remainder of the

contested amount from the AFC.

DONE AND ENTERED this 28th day of March, 2005, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 H earings

this 28th day of March, 2005.

ENDNOTES

1/ With a few exceptions, the Recommended Order refers to

Section 1002.37, Fla. Stat. (2001), because that statute was

enacted on July 1, 2001, with few substantial changes from

former Section 228.082, Fla . Stat. (2000). The relevant

differences in the two statutes pertain to legislative funding

for the FVS and are discussed, infra , in the text of the

Recommended Order.

2/ The LEA paid a salary to Petitioner as a full - time employee

for school years ident ified in the record as 1997 - 1998,

1998 - 1999, 1999 - 2000, 2000 - 2001, 2001 - 2002, and 2002 - 2003. For

the 2001 - 2002 school year, Petitioner earned an annual salary of

$65,855.93 as a full - time employee of the LEA and earned $6,150

working in the FVS. For the 2002 - 2003 school year, the LEA paid

Petitioner a salary of $11,149.00 as a full - time employee in

July and August 2003. Prior to July, Petitioner earned a salary

of $53,961.03 serving full - time in the FVS (for the 2002 - 2003

school year). For the 2003 - 200 4 school year, Petitioner

received combined salaries of $18,105.70 for her work with the

LEA and in the FVS. The combined total included payments for

accrued annual leave.

3/ Neither party submitted into evidence the actual contract

for the contested p eriod that began on September 15, 2001.

Findings concerning contract terms during the contested period

are based on contracts in subsequent years that Petitioner

testified were identical to the contract for the contested

period. Respondent did not questi on or otherwise impeach that

testimony. The testimony is credible and persuasive and is

consistent with the weight of the evidence. Petitioner and her

employer entered into two contracts effective July 1, 2002,

through June 30, 2003. One contract was an annual contract for

non - instructional personnel naming Petitioner as "Grants

Manager." The other contract was a Contract of Employment for

Part - Time Instructional Personnel. The terms of each contract

required termination to be based on "good cause" wit hin the

meaning of Subsection 1002.33(1)(a), Fla. Stat. (2001). If the

contract during the contested period were identical to the two

sample contracts, the actual contract was an annual contract

that could be terminated only for "just cause." The use of so -

called "just cause" contracts, rather than "adjunct" contracts,

is consistent with the standard of practice in the public school

system. § 1002.33(1)(a), Fla. Stat. (2001). Creditable service

for instructional employees is measured by "contract years" or

school terms rather than by 12 - month periods of employment.

§ 121.021(17)(a), Fla. Stat. (2001).

4/ The School is housed in the Office of Technology and

Information Services.

5/ Students must register for the FVS through one of 65

affiliated publi c school districts, a private school, or a

charter school.

6/ Seasonal state employees are expressly authorized to

participate in the FRS. § 121.051(6), Fla. Stat. (2001).

7/ Respondent also relies on part of a statement in the

procedures manual tha t adjunct instructors were not eligible for

employee benefits. The entire statement is that adjuncts are

not eligible for employee benefits except those required by law.

From Petitioner's perspective, benefits required by law included

statutorily mandate d retirement benefits. The procedures manual

grouped the term "adjuncts" as a synonym for independent

contractors. Neither the preliminary letter of denial nor the

final letter of denial includes as a ground for denial the

allegation that Petitioner was an independent contractor.

8/ Numerous statutes, other than those discussed in the text

infra , define the terms "state agency" or "agency" in a manner

that provides more guidance than the definition in

Subsection 121.021(32), Florida Statutes (2001). Co mpare ,

§§ 11.45(1)(j), 20.03(11), 112.3187(3)(a), 112.3189(1)(a), and

120.52(1), Fla. Stat. (2001), with § 11.45(1)(b), Fla. Stat.

(2001)(defining a "county agency"). See also Board of Public

Instruction v. State ex rel. Allen , 219 So. 2d 430 (Fla.

1969)( county school board is a state agency); accord Sublett v.

District School Board of Sumter County , 617 So. 2d 374 (Fla. 5th

DCA 1993); Canney v. Board of Public Instruction of Alachua

County , 222 So. 2d 803 (Fla. 1969)(defining local school boards

to be sta te agencies for purposes of Ch. 120).

9/ See generally, Chiles v. Children A, B, C, D, E, and F,

etc. , 589 So. 2d 260 (Fla. 1991)(declaring inclusion of a

legislative or judicial agency in the statute to be a violation

of the separation of powers and unconstitutional).

10/ Service of process for actions authorized in Section

768.28, Florida Statutes (2001), varies depending on the

identity of the head of the agency. § 768.28(7), Fla. Stat.

(2001). It is unclear from the enabling legislation whethe r the

Board or the Commissioner is the agency head for the employer.

It is clear, however, that neither the Board nor the

Commissioner is the head of a local agency.

11/ The FVS was initially identified by the legislature as "The

Florida Virtual High School." Compare § 228.082(1)(a), Fla.

Stat. (2000)(using the quoted name) with § 1002.37(1)(a), Fla.

Stat. (2001)(referring to the Florida Virtual School).

12/ Compare § 1002.37(1)(a)(housing the FVS in an office of the

Commissioner of Education, as t he Head of the Department of

Education, and requiring the Commissioner to monitor the

School's performance and report its performance to the State

Board of Education and the legislature) with 1002.37(2), Fla.

Stat. (2001)(describing the powers and responsi bilities of the

Board to develop an educational system, develop and acquire

intangible property rights, administer and control local school

funds, accrue supplemental revenue, and administer and maintain

personnel programs).

13/ The succession of autho rity over the state university

system from the Board of Regents to the Board of Governors is

described in NAACP, Inc. v. Florida Board of Regents , 876 So. 2d

636, 638 - 640 (Fla. 1st DCA 2004).

14/ By analogy, courts have consistently held that teachers

un der tenured contracts have an expectation of employment

irrespective of the vicissitudes of enrollment and funding.

See , e.g. , Clark v. School Board of Glades County , 716 So. 2d

330 (Fla. 2d DCA 1998)(tenured professional contract) and Slater

v. Smith , 14 2 So. 2d 767, 769 (Fla. 1st DCA 1962)(respective

holders of professional service and continuing contracts acquire

rights known as tenure). See also Davis v. School Board of

Gadsden County , 646 So. 2d 766, 769 (Fla. 1st DCA

1994)(considering continuous rel ationship of non - instructional

employee on annual contract over the previous 18 years in

determining right to continued employment). Although Petitioner

was not a legally tenured teacher for the FVS, the continuing

relationship with FVS moot the legal con tingency of funding and

enrollment.

15/ During the holiday break in the first semester of the

contested period, Petitioner attended a meeting with an attorney

for FVS on December 27, 2001, to assist in the development of a

procedures manual. On January 3, 2002, Petitioner participated

in a "think tank" to complete the procedures manual.

16/ See also Department of Revenue v. Anderson , 403 So. 2d 397

(Fla. 1981); Tri - State Systems, Inc. v. Department of

Transportation , 500 So. 2d 212 (Fla. 1st DCA 1986, review

denied , 506 So. 2d 1041 (Fla. 1987).

COPIES FURNISHED :

Thomas E. Wright, Esquire

Division of Retirement

Department of Management Services

4050 Esplanade Way, Suite 160

Tallahassee, Florida 32399

Madonna Sue Jervis Wise

6245 Frontier Drive

Zeph yrhills, Florida 33540

Alberto Dominguez, General Counsel

Department of Management Services

Post Office Box 9000

Tallahassee, Florida 32399 - 9000

Sarabeth Snuggs, Director

Division of Retirement

Department of Management Services

Post Office Box 9000

Ta llahassee, Florida 32399 - 9000

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 should be filed with the agency that

will issue the Final Order in this case.