93-003378 School Board Of Baker County And Anastasia Rush vs. Division Of Retirement Status: Closed Recommended Order on Wednesday, January 12, 1994.

Summary: Phd clinical psychologist providing professional services on contract held to be independent contractor & ineligible for retirement membership.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BAKER COUNTY DISTRICT SCHOOL )

BOARD and ANASTASIA RUSH, PH.D., )

)

Petitioners, )

)

vs. ) CASE NO. 93-3378

)

DEPARTMENT OF MANAGEMENT )

SERVICES, DIVISION OF RETIREMENT, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

A hearing was held in the above-styled case pursuant to notice by Stephen

F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on

October 5, 1993, in Jacksonville, Florida. Both parties stipulated to filing

their proposed findings and briefs on November 30, 1993.

APPEARANCES

For Petitioner: John W. Caven, Jr., Esquire

Claire M. Merrigan, Esquire

CAVEN, CLARK, RAY & TUCKER, P.A.

3306 Independent Square

Jacksonville, Florida 32202

For Respondent: Jodi B. Jennings, Esquire

Assistant General Counsel

Florida Division of Retirement

Cedars Executive Center

2639 North Monroe Street, Building C

Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUES

In this case, the Petitioners challenge the determination by the Respondent

that Anastasia Rush, Ph.D. is an employee of the Baker County School Board based

upon the Division of Retirement's determination that Dr. Rush is not an

independent contractor. The issue is whether Dr. Rush should be a member of the

Florida retirement system. This determination which turns upon whether she is

an employee of the school district. Which turns upon whether or not she is, and

was, an independent contractor providing professional services to the school

board pursuant to contract.

PRELIMINARY STATEMENT

The Petitioners filed a petition for formal proceedings pursuant to Section

120.57, Florida Statutes, challenging the determination of the Division of

Retirement classifying the Petitioner, Anastasia Rush, Ph.D., as an employee of

the Baker County District School Board (School Board or Board). The Division of

Retirement notified the Board by a letter dated April 1, 1993, that Dr. Rush was

an employee filling a regularly

retroactively enroll Dr. Rush in the Florida retirement system and pay

contributions to the system on her behalf. The superintendent of the school

system requested the Division of Retirement to reconsider its position, and by

letter dated May 19, 1993, the Division refused to alter its recommendation.

The Petitioners were advised of their right to a formal hearing on this matter

and filed their petition for formal proceedings on June 4, 1993. The Division

referred the case to the Division of Administrative Hearings, and on July 21,

1993, all parties were noticed of the hearing scheduled for October 5, 1993.

The hearing was conducted as noticed in Jacksonville, Florida. At the hearing,

Petitioners called Mrs. Wanda Walker, Dr. Anastasia Rush, and Superintendent

Timothy Starling. The Respondent called David W. Ragsdale. The Petitioners

offered into evidence exhibits A-P, all of which were received, except for the

third page of exhibit M. The Respondent offered into evidence exhibits 1-3, all

of which were received.

Both parties submitted proposed findings of fact which were read and

considered. The Appendix attached to this Recommended Order states which

findings were adopted and which were rejected and why.

FINDINGS OF FACT

1. The Board, in compliance with the statutory mandate requiring special

education programs for emotionally-handicapped students, contracted with the

Child Guidance Center, Inc., (CGC) to provide assessment and counseling of

qualified students. See, Ex. A-B and Tr. 215-217.

2. The Board obtained additional funding from grants to provide its

students with these mandated special educational programs relating to mental

health. See, Ex. E, F, G, H, and M.

3. The Board contracts with neighboring school boards which are unable to

afford their own programs and pay the Baker County Board to provide services to

severely emotionally disturbed children in their counties as required by the

statute.

4. The Board's contracts with mental health specialists are dependent upon

funding for special students from state monies allocated based upon the total

number of students and upon grant money. See, Tr. 38 and 215-216.

5. The Board has not established a permanent position for a health care

professional to render clinical mental health services. See, Tr. 72 and 217.

The Board has contracted for these professional services to severely emotionally

handicapped students, as well as for the professional services of occupational

therapists and physical therapists. See, Tr. 79.

6. CGC, the first provider of services to emotionally-handicapped

students, is a corporation whose business is providing mental health care. See,

Tr. 29.

7. The Board contracted annually with CGC beginning in 1982 to provide a

specified number of hours of counseling for its qualifying students. See, Tr.

31-33.

8. The number of hours stated in the contract with CGC varied according to

the availability of funding and established a financial liability limit on the

contract.

9. Each contract between the Board and CGC was for the term of the school

year and could be terminated by either party upon 30 days notice. See, Ex. B.

10. The contracts between the Board and CGC provided that the services

would be rendered in the Baker County public schools. See, Ex. B.

11. CGC billed the Board for each hour of counseling provided by its

employees. See, Ex. B.

12. CGC did its billing and accounting on a quarterly basis and arranged

with the Board to be paid on a quarterly basis for its convenience. See, Ex. B;

Tr. 145-146.

13. Dr. Rush was an employee of CGC and first began providing mental

health services to the students of Baker County in the early 1980's. See, Tr.

142.

14. Dr. Rush is a licensed psychologist specializing in child psychology.

Dr. Rush received a graduate degree in psychiatric social work from the

University of Athens, Greece, and received a Ph.D. in clinical psychology from

the University of Florida. See, Tr. 140-141. Dr. Rush has worked in the field

of mental health for approximately 20 years.

15. Dr. Rush began her own practice while still working for CGC through

Dr. Freeman under the name of Salisbury Counseling Clinic. See, Tr. 168-169 and

183.

16. In 1990, Dr. Rush no longer wanted to be an employee of CGC and became

an independent contractor with CGC. See, Tr. 146-147.

17. Dr. Rush's private practice grew gradually and prior to 1991, she had

resigned her employment with CGC, concentrating on her private practice. See,

Tr. 146.

18. In 1991, the Board cancelled its contract with CGC. See, Tr. 37-38.

19. Wanda Walker, administrator of the special education programs,

approached Dr. Rush and asked her if she would provide the mental health care as

an independent contractor, as previously provided by CGC. See, Tr. 37-38.

20. On August 16, 1991, the Board entered into two contracts with Dr. Rush

to provide different types of mental health counseling to its students. See,

Ex. A

21. One contract between Dr. Rush and the Board provided that Dr. Rush

would provide mental health services to the Board for at least nine hours per

week, from which two hours would be committed to the special needs of the

students in the Opportunity Program at Baker County High School. The contract

services were for 37 weeks of the 1991-1992 school year. The cost of the

service was $40.00 per hour, and Baker County agreed to pay Dr. Rush an amount

not to exceed $14,460.00 for the service. The agreement required Dr. Rush to

perform the services at Baker County public school sites, and provided that the

mental health services should include psychological evaluations, classroom

observations, participation as a member of the crisis intervention team, and

consultations with teachers, guidance counselors and other appropriate school

personnel. Dr. Rush submitted a statement of hours worked every two weeks, and

was paid the contractual rate for each hour of professional services rendered.

The contract provided that either party could terminate upon 30 days written

notice.

22. The other contract between the Board and Dr. Rush provided that Dr.

Rush would provide mental health services to severely emotionally disturbed

students in the Day Treatment Program at Southside Educational Center. This

contract provided that Dr. Rush would provide case management, assessments and

evaluations, consultation to school personnel, mental health services

appropriate to the program, and direct the counseling services provided to Day

Treatment Program students. The contract provided that Dr. Rush would provide

for 10 hours of professional services per week for 37 weeks at a cost of $40.00

per hour not to exceed $14,550.00. The contract provided that Dr. Rush would

submit a statement of hours worked every two weeks, and that the agreement could

be terminated by either party upon 30 days written notice.

23. On June 4, 1992, Dr. Rush entered into an agreement to provide

professional services to the Board for the 1992-1993 school year. This contract

duplicated the previous contract for nine hours per week of mental health

services for 37 weeks in the 1992-1993 school year at a cost of $40.00 per hour

not to exceed $14,460.00. The only significant change in this contract was that

the contract covered the provision of services by Dr. Rush or her associate,

Nancy Davie.

24. On June 4, 1992, Dr. Rush entered into a contract with the Board to

provide mental health services to severely emotionally disturbed students

similar to the previous contract for the 1991-1992 school year. The contract

for mental health services to severely emotionally disturbed students did not

provide for the provision of these services by Nancy Davie.

25. When the June 1992 contracts were executed, Dr. Rush had incorporated

her professional practice; however, she entered into the contracts with the

Board in her individual name. The Board was unaware of Dr. Rush's

incorporation. Dr. Rush did not believe that there was a difference between

contracting in her name or the name of her corporation; however, this contract

was subsequently amended to indicate that her corporation was the contracting

entity. See, Tr. 152-153, 189 and 190. Dr. Rush contracted with the Board in

the name of her corporation, Protepon Counseling Center, in 1993.

26. Dr. Rush maintained two offices, one in Jacksonville and one in

Macclenny, where she held herself out to the public as a individual providing

psychological counseling and where she conducted her professional business.

27. Generally, Dr. Rush and her associates provided their services at the

schools within the district; however, Dr. Rush maintained a professional office

in Macclenny, Florida, and met with students and their parents at her

professional office as necessary. See, Tr. 71. Both Dr. Rush and CGC provided

services at the various schools within the district to alleviate the need to

transport children and disrupt their schedules.

28. Dr. Rush and her associates used the offices of guidance counsellors

when at the various schools. See, Tr. 14 and 85.

29. During the time that Dr. Rush has provided mental health services to

the Board, Dr. Rush has provided her own tools for counseling and assessing

students.

30. She provides all of her own supplies. See, Tr. 88 and 297-298.

31. Dr. Rush is not reimbursed for the use of her supplies or standardized

tests. See, Tr. 211

32. Dr. Rush provides mental health counseling to private individuals and

agencies, to include St. Johns River Hospital, the Center for Life Enrichment,

Capp Care, Flamedco, Inc., and the Florida Medical Association Alternative

Insurance Program. See, Tr. 160-165.

33. Dr. Rush provides a profit sharing plan to her associates and

maintains workers compensation insurance for her employees. See, Tr. 174 and

208.

34. The contracts with the Board make up only a fraction of Dr. Rush's

gross income from her professional practice. See, Ex. J(2); Tr. 169-170.

35. Dr. Rush maintains her own retirement fund and has done so since she

left CGC in 1991. See, Ex. J(3); Tr. 172-173.

36. Neither the Board or Dr. Rush consider their relationship to be an

employment relationship. See, Tr. 149 and 217. It was never the intent of Dr.

Rush to be an employee of the Board or the Board's intent for Dr. Rush to be its

employee. See, Tr. 149 and 181. Both Dr. Rush and the Board anticipated the

continuation of the independent contractor relationship.

37. The Board paid Dr. Rush for the services rendered by her and her

associates from the special fund and not from a salary or payroll account. See,

Ex. I.

38. Every two weeks, Dr. Rush submitted statements of professional

services rendered by her or her associates and charged the Board per hour for

these services. See, Tr. 180-182.

39. Dr. Rush was paid for each hour of service which she or her associates

provided, and was not paid a salary or reimbursed or compensated for travel

costs or supplies. See, Ex. I; Tr. 297

40. The statements do not indicate whether Dr. Rush or one of her

associates provided the service to the Board.

41. The Board never paid any of Dr. Rush's associates. See, Tr. 43-44,

106 and 107. Dr. Rush's associates have always been paid by Dr. Rush. See, Tr.

151-152.

42. The Board never deducted withholding taxes from its payments to Dr.

Rush. See, Ex. I.

43. Dr. Rush paid her own social security tax. See, Tr. 207.

44. Dr. Rush was paid by the Board as she is paid by all of her clients at

the agreed-upon hourly rate for her professional counseling services. See, Ex.

I; Tr. 182.

45. In making its determination, the Division of Retirement relied upon

the answers provided by Dr. Rush and Wanda Walker to a questionnaire sent out by

the Division of Retirement. See, Ex. O. Both Dr. Rush and Ms. Walker answered

the questionnaire without help from legal counsel and without understanding its

purpose or legal implications. See, Tr. 77-79, 82, and 176.

46. Dr. Rush provided an annual orientation to new personnel and students;

however, she did not take any training program required by the Board during the

period of these contracts.

47. The answers provided by Dr. Rush and Ms. Walker were ambiguous

regarding the fact that the annual orientation in which Dr. Rush participated

was provided by Dr. Rush to Board employees. See, Ex. O; Tr. 70, 88-89, and

178-179.

48. Using the school calendar, Dr. Rush prepared a schedule calendar

indicating the dates, times, and school locations at which she or her associates

would provide professional services under the contract with the Board. See, Tr.

178. See, Tr. 45-48, and Ex. D. Pursuant to their contract, Dr. Rush provided

professional services for the Board at the times and dates when students were

attending school. See, Ex. C. Dr. Rush set her own schedule within the

confines of the school day and the school year.

49. The purpose of the calendar schedule was to alert teachers as to Dr.

Rush's availability at particular schools. See, Tr. 85. Dr. Rush and her

associates did not check in with a supervisor at the various schools. Dr. Rush

called Ms. Walker, who notified the appropriate school when a new counsellor

would be going to that school. See, Tr. 121-122.

50. This practice was designed for security reasons to let the school know

for security reasons that a new individual would be providing services.

51. Dr. Rush was available if there was an emergency. When paged, Dr.

Rush called the school and determined from the facts if it was necessary for her

or one of her associates to respond. See, Tr. 131 and 297.

52. Dr. Rush was not subject to being summoned by Board employees, but

exercised her professional judgment about the by of response which was

necessary. See, Tr. 131 and 297.

53. Dr. Rush and her associates evaluated students and recorded the

results of their testing and observations. They participated as part of the

multidisciplinary team required by law to assess special education students and

prepare their educational programs. In this regard, the reports of Dr. Rush and

her associates were expressions of their professional expert opinion. See, Tr.

66.

54. It was the experience and expertise of Dr. Rush and her associates

which the Board sought in contracting with Dr. Rush. The Board did not direct

Dr. Rush's counseling of students. See, Tr. 81-87. Dr. Rush and her associates

conducted their counseling h e B o a r d . t S e , T r . 8 3 - e m o r  w i t h o u t a n y c o n t r o l f 8 4

and 227.

CONCLUSIONS OF LAW

55. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding. Section 120.57(1),

Florida Statutes.

56. It is conceded by all of the parties that employees of the Board are

covered. The issue is whether Dr. Rush is an independent contractor or an

employee.

57. Rule 60S-6.001(33), Florida Administrative Code, defines independent

contractor as "an individual who is not subject to the control and direction of

the employer for whom work is being performed, with respect not only to what

shall be done but to how it shall be done...". A portion of the rule quoted

above states the primary criteria used by the courts in cases going back to

Cantor v. Cochran, 184 So.2d 173 (Fla. 1966), in determining whether an

individual is an independent contractor.

58. The Florida Supreme Court in Cantor, supra., cited the criteria

constituting the appropriate test for determining an independent contractor as

found in the Restatement (S2d) of Agency, Section 220 (1958), which included:

A. Extent of control

B. Engaged in a distinct occupation

C. Kind of occupation

D. Skill required in occupation

E. Whether an employer furnishes

instrumentalities, tools, and work place

F. Length of time

G. Method of payment, i.e., by time or job

H. Whether its part of the employer's

regular business

I. Intent of the parties

J. Whether principal is in a business

59. The Department's Rule, 60S-6.001(33), Florida Administrative Code,

cited above, lists a number of criteria which address the same basic issues

addressed by the court in Cantor, supra.

60. Applying the criteria used in the Division's rule and by the court in

Cantor to the facts presented as follows:

61. Control--The most credible evidence is that Dr. Rush set her own hours

and schedule and provided the Board with the times that she would be available

to provide services to the various schools.

62. Set hours of work--To the extent that the contracts specified a set

number of hours it could be worked, these established a limitation on the

financial obligation on the part of the Board. There was no evidence that Dr.

Rush did not have the greatest amount of flexibility in determining which hours

she would provide to which schools and when. Dr. Rush had two contracts each

year initially, each of which provided a minimum number of hours per week, which

Dr. Rush would provide to the Board. The very existence of two contracts

mitigates against the concept of the employee/employer relationship. It

indicates that Dr. Rush was being employed to perform two separate jobs on an

annual contract.

63. Distinct occupation--Clinical psychology is a health-related

profession which is separate and apart from teaching or educational

administration. Psychology, as practiced by Dr. Rush, is separated from

educational testing and counseling. The services provided by Dr. Rush related

to professional intervention to define a problem and assist a student with it.

While mandated as part of the services provided under the Federal laws related

to special education, the services provided by Dr. Rush are at best an adjunct

to education.

64. Skill required--The skill and experience required to practice clinical

psychology is beyond that required of psychologists in educational testing and

counseling, and is equal to that required of a medical doctor or attorney.

65. Whether the employer furnishes tools, supplies, and a place to work--

The evidence revealed that Dr. Rush utilized the offices of the school guidance

counselors when providing services at the schools; however, Dr. Rush did this to

accommodate the Board in avoiding the necessity to transport children to one of

the professional offices in Macclenny and in Jacksonville, Florida, which Dr.

Rush maintained. In appropriate cases, Dr. Rush saw students and their parents

in her offices in conjunction with her work for the Board. Dr. Rush provided

her own supplies, testing materials, and general office equipment.

66. Hold oneself out to the public as a professional--Dr. Rush held

herself out to the public as providing clinical psychological services and she

provided services to the general public at her professional offices located in

Macclenny and Jacksonville, Florida, at all times during the period covered by

her contracts with the Board.

67. Length of time--Dr. Rush provided professional services to the Board

pursuant to contract. Each of these contracts ran for less than a year and were

funded in whole or in part by grant monies. Such monies are deemed "soft" money

because they are not subject to reappropriation annually. Therefore, it was not

realistic for the Board to establish a regular position. If the funding had not

been renewed, the Board would have had to discharge the incumbent.

68. Method and manner of payment--Dr. Rush provided to the Board the

number of hours she and her associates had worked in the previous two weeks, and

the Board paid for those services at the contractual rate. Note that the

parties had two contracts for the provision of services of differing types at

the same time, and that later contracts permitted the services to be rendered by

persons other than Dr. Rush. This is strong evidence that Dr. Rush was not an

employee whose time is controlled and directed by the employer.

69. Is the activity part of the employer's business--While Federal law

mandates the provision of psychological services to special education students,

the activities of Dr. Rush were collateral to the principal business of the

Board which is student education.

70. Intent of the parties--It was clearly the intent of the parties not to

establish an employee/employer relationship.

71. Whether the principal is in business--While not classically a

business, the Board is engaged in providing services to its constituency.

aining--Dr. Rush has a doctorate in the field of clinical psychology

and has many years of clinical experience. The Board employed Dr. Rush for her

training, skill, and experience in providing psychological assessment and

intervention. Dr. Rush holds herself out to the general public as a provider of

this type of professional services. To this end, she maintains professional

offices in Macclenny and Jacksonville, Florida.

73. Exposure to economic loss - It is erroneous to say that Dr. Rush could

not suffer traditional loss in providing the services which she provided to the

Board pursuant to contract. She did, in fact, invest in materials, equipment,

and office rental. Had Dr. Rush's expenses exceeded her receipts from work done

for the Board and for private clients, she would have suffered a loss.

74. Reporting--Dr. Rush would have been required to provide professional

assessments on the students with whom she was working pursuant to her contracts

with the Board on a periodic basis for the purposes of evaluating the

educational plan developed by the Board using a multi-discipline approach.

Although the record is unclear regarding whether Dr. Rush was required to follow

a specific format rendering these reports, clearly, the Board could not dictate

to Dr. Rush the nature of her professional assessments regarding the students

who she was seeing. In summary, the Board could not dictate how Dr. Rush

treated the students.

75. Order of sequence of services--While the Board may have developed

procedures for its staff in identifying students for referral to Dr. Rush, the

process by which Dr. Rush assessed the students to determine their eligibility

for participation and to assess any of their psychological needs was in no way

dictated nor mandated by the Board.

76. Right to terminate the contract--Under the contract between the

parties, either side can terminate the contract upon thirty (30) days notice.

There was no provision for termination for cause, as is found in employment

contracts.

77. The facts taken as a totality do not establish that Dr. Rush was an

employee. She was a professional clinical psychologist providing professional

services pursuant to contract. Section 121.021(22), Florida Statutes, defining

compensation provides that under no circumstances shall compensation include

fees paid professional persons for special or particular services. The evidence

provided in this case indicates that the nature and extent of services provided

by Dr. Rush, pursuant to contract with the Board, constituted professional

services and are specifically excluded by law from inclusion as compensation.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that Dr. Rush be treated as an independent contractor and

denied participation in the Florida Retirement System.

DONE AND ENTERED this 12th day of January, 1994, in Tallahassee, Florida.

___________________________________

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of January, 1994.

APPENDIX TO RECOMMENDED ORDER

CASE NO. 93-3378

Both parties submitted proposed findings which were read and considered.

Contrary to the Division's rules, Baker County did not number its findings and

did not limit them to short statements of fact. Therefore, although most of its

findings were adopted in the order originally presented, it is virtually

impossible to identify which of the findings were adopted. In order to assist

those attempting to determine which facts were adopted, and which were rejected

and why, the numbers listed under the Recommended Order column below reference

the paragraphs in the Recommended Order which contain the findings suggested by

the Division, or the alternative findings suggested by Baker County which the

Hearing Officer determined were based upon the more credible evidence. It is

readily apparent when the reason is stated for rejecting the proposed findings.

Retirement's Findings Recommended Order

Paragraphs 1-3 1,2,3,6,7,13

Paragraph 4 14

Paragraph 5,6 19

Paragraph 7 Rejected as contrary to more

detailed descriptions of the

contracts at issue.

Paragraph 8,9 20,21,22

Paragraph 10 Irrelevant.

Paragraph 11 As indicated in the

Conclusions, there is no issue

concerning the

fact that employees of school

boards are qualified for

membership in the retirement

system. The issue is whether

Dr. Rush was an employee.

Paragraph 12,13,14 23,24,25,49,50

Paragraph 15 26,32,34

Paragraph 16 The differences in the terms of

the board's contracts with CGC

and Dr. Rush are not relevant.

Paragraph 17 1,53,54

Paragraph 18 48,49

Paragraph 19 37-44

Paragraph 20-23 2-4,37-44. The manner in which

some non-instructional staff

are paid is irrelevant.

Paragraph 24 26,28-31

Paragraph 25 45-47

Paragraph 26 51,52

Paragraph 27-28 53

paragraph 29 26,28

Paragraph 30,31 25

Paragraph 32,33 Irrelevant argument.

COPIES FURNISHED:

A.J. McMullian, III, Director

Division of Retirement

Cedars Executive Center, Bldg. C

2639 North Monroe Street

Tallahassee, FL 32399-1560

Sylvan Strickland, General Counsel

Department of Management Services

Knight Building, Suite 309

2737 Centerview Drive

Tallahassee, FL 32399-0950

John W. Caven, Jr., Esquire

Claire M. Merrigan, Esquire

CAVEN, CLARK, RAY & TUCKER, P.A.

3306 Independent Square

Jacksonville, FL 32202

Jodi B. Jennings, Esquire

Assistant General Counsel

Florida Division of Retirement

Cedars Executive Center, Bldg. C

2639 North Monroe Street

Tallahassee, FL 32399-1560

William H. Linder, Secretary

Department of Management Services

309 Knight Building

2737 Centerview Drive

Tallahassee, FL 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this

Recommended Order. All agencies allow each party at least ten days in which to

submit written exceptions. Some agencies allow a larger period within which to

submit written exceptions. You should contact the agency that will issue the

Final Order in this case concerning agency rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order

should be filed with the agency that will issue the Final Order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF MANAGEMENT SERVICES

DIVISION OF RETIREMENT

BAKER COUNTY SCHOOL BOARD

and ANASTASIA RUSH,

Petitioners,

DOR CASE NO. DR 93-12

vs. DOAH CASE NO. 93-3378

DEPARTMENT OF MANAGEMENT

SERVICES, DIVISION OF

RETIREMENT,

Respondent.

_____________________________/

FINAL ORDER

This matter was heard in Jacksonville, Florida, on October 5, 1993, before

Stephen F. Dean, a duly designated Hearing Officer of the Division of

Administrative Hearings. Both parties filed proposed findings of fact and

conclusions of law. Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioners: John Caven, Esquire

Caven, Clark, Ray & Tucker, P.A.

3306 Independent Square

Jacksonville, Florida 32202

For Respondent: Jodi B. Jennings, Esquire

Division of Retirement

Cedars Executive Center, Building C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

A Recommended Order was issued on January 12, 1994. A copy of the

Recommended Order is attached hereto, incorporated by reference and made a part

of this Final Order as an exhibit. Neither party filed exceptions to the

Recommended Order.

After consideration of the all matters of record in this cause, the

transcript, the Recommended Order and the exhibits introduced at the hearing,

the Division of Retirement now enters its Final Order.

FINDINGS OF FACT

The Division hereby adopts and incorporates the findings of fact set forth

in the Recommended Order.

CONCLUSIONS OF LAW

1. The Division of Retirement has jurisdiction of the parties and the

subject matter of this proceeding. Section 120.57(1), Fla. Stat. (1993).

2. Section 120.57(1)(b)(10), Fla. Stat. (1993) provides, in pertinent

part:

The agency may adopt the recommended

order as the final order of the agency.

The agency in its final order may reject

or modify the conclusions of law and

interpretation of administrative rules in

the recommended order. . . .

3. Chapter 121 of the Florida Statutes established the Florida Retirement

System in 1970. The Division of Retirement, pursuant to section 121.031(1),

Fla. Stat. (1993), is authorized to implement rules for the efficient

administration of the system.

4. The rules of the Division of Retirement contain a definition of

independent contractor. "Independent contractor" is defined at Rule 60S-

6.001(33), Fla. Admin. Code, and provides:

INDEPENDENT CONTRACTOR -- Means an

individual who is not subject to the

control and direction of the employer for

whom the work is being performed, with

respect not only to what shall be done

but to how it shall be done. If the

employer has the right to exert such

control, an employee-employer

relationship exists and the person is an

employee and not an independent

contractor. The Division has adopted the

following factors as guidelines to aid in

determining whether an individual is an

employee or an independent contractor.

The weight given each factor is not

always the same and varies depending on

the particular situation.

The twenty criteria to be considered are:

a. Instructions

baining

c. Integration

d. Services rendered personally

e. Hiring assistants

f. Continuing relationship

g. Set hours of work

h. Full-time or part-time work

i. Work done on premises

j. Order or sequence of services

k. Reports

l. Payments

m. Expenses

n. Tools and materials

o. Investment

p. Profit or loss

q. Works for more than one person or firm

r. Offers services to general public

s. Right to terminate employment

t. Right to quit

4. The determination of whether an individual is an independent contractor

depends not upon the statements of the parties but upon all the circumstances of

their dealings with each other, Cantor v. Cochran, 184 So. 2d 173 (Fla. 1966),

with the most important element being the right of the employer to maintain

control over the individual. Messer vs. Dept. of Labor and Employment, 500 So.

2d 220, 221 (Fla. 5th DCA 1988).

5. Applying the foregoing criteria to the present case, the following

conclusions are reached:

a. Instructions -- Dr. Rush was given instructions regarding the number of

hours she could work and the locations where she was to provide services by

contract. She was instructed concerning her work schedule to the extent that

her schedule was dependent upon the school schedule and was expected to respond

to emergencies at the various school sites. However, Dr. Rush maintained the

discretion to provide services at her offices when appropriate. Dr. Rush was

not instructed as to how to counsel students; such instruction, however, would

not be expected to be given because Dr. Rush is a professional, and was hired

for her particular expertise in counseling students. In some areas Dr. Rush

received instructions, while in others she did not. On its own, this factor is

not conclusive.

baining -- Dr. Rush was not trained by the Baker County School Board

(BCSB). At the time she contracted with the BCSB, she was a psychologist with a

number of years of experience in her field. This factor therefore has little

weight in the analysis of this case.

c. Integration -- The services provided by Dr. Rush were mandated by

statute and were integral to the success of the BCSB. Under this factor, she

was an employee.

d. Services rendered personally -- All services were not provided

personally. Dr. Rush initially performed services personally, then later

utilized the services of an associate in addition to providing services

personally. Under this factor, she was an independent contractor.

e. Hiring assistants -- Initially, Dr. Rush had no assistants; later, she

utilized the services of associates. Dr. Rush's associates were hired and paid

by Dr. Rush. Under this factor, she was an independent contractor.

f. Continuing relationship -- Dr. Rush provided services for the BCSB

continuously from 1982 through 1993. Between 1982 and 1990, she provided

services through Child Guidance Center's contracts with the BCSB. The length of

the relationship indicates an employer-employee relationship.

g. Set hours of work -- The agreements specified the numbers of hours

which could be worked. Dr. Rush scheduled working hours within the confines of

the school calendar. However, she performed additional services after school

hours at her offices. Her hours were not dictated by the BCSB. This factor is

more indicative of independent contractor status.

h. Full-time or part-time work -- Dr. Rush did not provide services to the

BCSB on a full-time basis. However, part-time employees are compulsory members

of the FRS. This factor has little weight in the analysis of this case.

i. Work done on premises -- In addition to providing services at the

school sites, Dr. Rush also provided services at her offices in Macclenny and

Jacksonville as necessary. This factor weighs in favor of independent

contractor status.

j. Order or sequence of services -- The contracts specified which services

Dr. Rush was to provide. The BCSB developed procedures for identifying students

for referral to Dr. Rush. Once the students were referred to Dr. Rush, she

determined the counseling services to be provided. Both parties participated in

some aspect of this factor. On its own, this factor is not conclusive.

k. Reports -- Dr. Rush was required to perform professional assessments of

the students on a periodic basis pursuant to the contracts. The reporting

requirement indicates an employer employee relationship.

l. Payments -- Dr. Rush was paid hourly, biweekly and personally rather

than by the job or by commission. She was paid out of an other than salaries

account. The method of payment indicates an employer-employee relationship.

m. Expenses -- Dr. Rush paid her own business expenses. This is

characteristic of an independent contractor.

n. Tools and materials -- Dr. Rush provided the testing materials and

supplies she used in connection with the services she was providing. This is

characteristic of an independent contractor.

o. Investment -- Dr. Rush provided some services at her offices in

Macclenny and Jacksonville. To the extent that she provided services at her own

offices, she had an investment. Investment is characteristic of an independent

contractor.

p. Profit or loss -- Dr. Rush was in a position to suffer a loss or

realize a profit to the extent that she provided services at her own offices.

According to this factor, she was an independent contractor.

q. Works for more than one person or firm -- Dr. Rush contracted with

several mental health providers in addition to the BCSB during the period at

issue in this case. This indicates independent contractor status.

r. Offers services to the general public -- Dr. Rush made her services

available to the general public at her offices in Macclenny and Jacksonville.

According to this factor, she was an independent contractor.

s. Right to terminate employment -- The contracts provided that either

party could terminate the contract upon thirty days notice. The contracts

contained no provision for liability upon termination. According to this

factor, she was an employee.

t. Right to quit -- As stated above in paragraph s., Dr. Rush could quit

upon thirty days notice with no provision for liability. According to this

factor, she was an employee.

In this particular case, Dr. Rush was not subject to the control of the

BCSB with regard to many aspects of her services. She had her own offices;

contracted with numerous mental health service providers; hired and paid her own

assistants who performed services at her direction; furnished her own materials

and paid her own expenses; and maintained flexibility with respect to where and

when she would perform some services.

Rule 60S-6.001(33) states that the enumerated factors are to be used as

guidelines, and the weight given each factor varies depending on the particular

situation. Based on a review of the factors in this particular case, Dr. Rush

was, as a matter of law, an independent contractor with respect to the BCSB.

THEREFORE, based upon the foregoing, it is

ORDERED AND DIRECTED that Dr. Anastasia Rush was an independent contractor

with respect to the Baker County School Board between August 1991 and August

1993 and was not a compulsory member of the Florida Retirement System for that

period of time.

DONE AND ORDERED this 11th day of April, 1994, at Tallahassee, Leon County,

Florida.

________________________

A. J. MCMULLIAN III

State Retirement Director

Division of Retirement

FILED WITH THE CLERK OF THE

DIVSION OF RETIREMENT THIS

12th DAY OF APRIL, 1994

Copies furnished to:

John Caven, Esquire

Caven, Clark, Ray & Tucker, P.A.

3306 Independent Square

Jacksonville, Florida 32202

Stephen F. Dean

Hearing Officer

Division of Administrative Hearings

1230 DeSoto Building

Tallahassee, Florida 32399

Clerk

Division of Administrative Hearings

1230 DeSoto Building

Tallahassee, Florida 32399

Jodi B. Jennings

Assistant Division Attorney

Division of Retirement

Cedars Executive Center

2639 North Monroe Street

Building C

Tallahassee, Florida 32399-1560

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL

REVIEW PURSUANT TO SECTION 120.68 OF THE FLORIDA STATUTES. REVIEW PROCEEDINGS

ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE

COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE

DIVISION OF RETIREMENT, AND A SECOND COPY, ACCOMPANIED BY THE FILING FEES

PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH

THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES.

THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO

BE REVIEWED.