93-001592 Evelyn A. Sebree vs. Division Of Retirement Status: Closed Recommended Order on Friday, October 29, 1993.

Summary: Community college financial aid administrator reemployed as college president Search facilitator was independent contractor, not employee; full retirement benefits due.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVELYN A. SEBREE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1592

)

DEPARTMENT OF MANAGEMENT SERVICES, )

DIVISION OF RETIREMENT, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on July 8, 1993, in

Leesburg, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ms. Evelyn A. Sebree

Post Office Box 150

Umatilla, Florida 32784

For Respondent: Larry D. Scott, Esquire

Department of Management Services

Division of Retirement

2639 North Monroe Street, Building C

Tallahassee, Florida 32399-1560

STATEMENT OF THE ISSUE

Whether or not Respondent appropriately denied Petitioner's retirement

benefits and what, if any, amount Petitioner must repay.

PRELIMINARY STATEMENT

The controversy in this case arises from a demand by the Division of

Retirement (DOR) that Petitioner repay $2,037.58 as retirement benefits received

by Petitioner from the Florida Retirement System (FRS) within the first twelve

months of her retirement from Lake-Sumter Community College (LSCC) due to her

re-employment by LSCC. Petitioner contends she was an independent contractor

and thus exempt from pay-back requirements.

Petitioner made a timely request for formal hearing and this case was

originally assigned to Hearing Officer Stephen F. Dean who noticed it for final

formal hearing on July 8, 1993. In his absence, the formal hearing was

conducted by the undersigned on the same date at a later hour.

DOR presented the oral testimony of Pat Ochoa and Petitioner and had four

exhibits admitted in evidence. DOR Exhibits 2, 3, and 4 are testimony by

deposition of Randall Thornton, Sarabeth Snuggs, and Petitioner, respectively.

The parties stipulated that the deposition of Petitioner would be admitted in

addition to her oral testimony.

Petitioner testified on her own behalf and presented the oral testimony of

Dr. Kenneth Stack and Dr. Dixie Allen.

No transcript was provided. Upon letter-motion filed July 26, 1993,

Petitioner was granted additional time in which to submit her post-hearing

proposals, which were filed August 17, 1993. Respondent's post-hearing

proposals were filed August 16, 1993. All proposed findings of fact have been

ruled upon in the appendix to this recommended order, pursuant to Section

120.59(2) F.S.

FINDINGS OF FACT

1. Petitioner Dr. Evelyn A. Sebree was employed by Lake-Sumter Community

College (LSCC) for over 25 years. LSCC is an agency within the State of Florida

Retirement System (FRS).

2. Petitioner was employed by LSCC as an instructor and later as a part-

time counselor. She was subsequently named the Director of Financial Aid and

the Executive Director of the Foundation. She served simultaneously in both

capacities for many years. The Foundation is the fund-raising arm of LSCC and a

nonprofit corporation separate from LSCC with its own governing board, bylaws

and constitution. Only an employee of the college can be Director of the

Foundation, but the Foundation Board is not made up of LSCC employees.

3. In her LSCC employment as Director of Financial Aid, Petitioner was

responsible for administering the college's student financial aid program. Her

immediate supervisor in this employment category was Dr. Dixie Lee, and

Petitioner reported ultimately to the Dean of Student Services. In this

employment capacity, she administered federal, state, institutional and private

grants, loans, and scholarship programs, including but not limited to Pell

Grants, the Basic Education Opportunity Grant Program, the GI Bill, and work-

study programs. She supervised three work-study students, who were part-time

LSCC employees, and a financial aid specialist, a full-time LSCC employee, and

had her own private office on campus.

4. As Executive Director of the Foundation, Petitioner was responsible for

raising money for the college and for scholarships. She reported to the LSCC

President, was responsible for fund raisers, making contacts with potential

donors, and soliciting money from various wealthy people for the college.

5. During her LSCC employment as Financial Aid Director and collateral

service as Executive Director of the Foundation, Petitioner developed many

influential contacts in the fields of higher education and financial

administration. These contacts were not only statewide, but also national.

Petitioner also served on many state and national boards, including: State

Financial Aid Association, Board of Directors of the Southern Association of

Student Financial Aid, National Board of Student Financial Aid Directors, and

the Florida Association of Community College and College Board Council on Higher

Education Services. After her retirement as an employee of LSCC, Petitioner

could no longer serve as Executive Director of the Foundation, but Petitioner

continued to serve on the Board of the Foundation, as a private citizen.

6. As a result of her contacts with many influential people, Petitioner

considered herself to be a mover and a shaker in the community.

7. Petitioner decided to retire after 29 years of service at the college

when she was offered an early retirement incentive package. The package

included paid health insurance for three years and partial salary for three

years.

8. Prior to her retirement, DOR mailed Petitioner a brochure. The

brochure advised the Petitioner of the re-employment limitations. Prior to

receiving her first retirement warrant, DOR mailed Petitioner a letter, again

advising her that benefits would be suspended if she was re-employed within

twelve months of her retirement date.

9. As an agency within the FRS, LSCC was mailed several numbered memoranda

advising reporting agencies to avoid "sweetheart" arrangements by hiring

recently retired employees to fill positions within the system.

10. Petitioner retired, effective July 1, 1992.

11. In the fall of 1992, the LSCC college president quit. Dr. Kenneth

Stack was appointed acting president while the LSCC Board of Trustees mounted a

search for a permanent replacement president.

12. The LSCC Board of Trustees is the governing board of the college

which, among other duties, hires and fires the college president, sets college

policy and adopts a budget. The LSCC Board of Trustees decided the new college

president should be someone from Florida. They desired a college president who

would have knowledge of the Florida educational system.

13. The LSCC Board of Trustees had previously hired two college

presidents, one six years previously and one eleven years previously. In each

instance, a search committee made up of faculty, students, trustees, townspeople

and residents of the two counties, Lake and Sumter, had been formed, and the

Board had contracted with an outside "facilitator" to focus the presidential

search and assist the presidential search committee. The last facilitator had

been hired in 1986 from a professional group of "consultants" from Washington,

D.C.

14. This time, in 1992, LSCC's Board of Trustees decided they needed to

hire a facilitator with knowledge of LSCC, the geographic area, college

personnel within the state, and the Florida Community College System. The Board

also believed that an in-state facilitator would help achieve their ultimate

desired result of obtaining a qualified Floridian to fill the vacant LSCC

presidency.

15. Petitioner was nominated for facilitator by Board of Trustees member,

Randall Thornton, an attorney. Due to her past employment and community

reputation, Petitioner's education, training, experience, and status in the

community were well known to all Board members. The Board considered

facilitator candidates from the University of Florida and Florida State

University also, but Petitioner was selected instead. All Board members cast a

vote for their choice of facilitator. One consideration in favor of Petitioner

was that she would accept a contract capped at $5,000, while the last

professional out-of-house facilitator's total cost to LSCC was nine times that

figure, or roughly $45,000.

16. Petitioner was appointed Presidential Search Committee Facilitator

pursuant to a contract drawn by attorney Randall Thornton. This contract

significantly paralleled the contract between LSCC and its last out-of-state

facilitator in that Mr. Thornton used the old contract as his model for the new

one.

17. For purposes of this proceeding, the significant provisions of

Petitioner's contract are that: Petitioner was to be paid at the rate of $40

per hour up to a maximum of $5,000, regardless of how long the search took to

complete. Clearly, it may be inferred that Petitioner's services would end when

a college president was selected. In order to be paid, Petitioner was to bill

the Board of Trustees monthly for hours worked and for expenses. She was to be

reimbursed for any expenditures or expenses in addition to her hourly fee for

personal services. To minimize costs to LSCC, Petitioner's travel expenses were

geared to Chapter 112 F.S., normally covering state employees. She also was

required to use the college's Watts line "to the extent possible," but she would

be reimbursed for all her out of pocket expenses, including but not limited to

telephone calls, fax, express mail, travel, and similar items. Because this was

a personal services contract, Petitioner could not delegate her duties except

with express prior agreement of the Board, but there was no specific prohibition

on her hiring subordinate support service helpers. Either LSCC or Petitioner

could cancel the contract upon 30 days' written notice without incurring

liability to each other. However, Petitioner agreed to indemnify and "hold

harmless" the college both for her own negligence in conducting the search and

for any other liability arising out of her activities during the search. She

was required to comply with equity rules and regulations. This requirement may

be inferred to reiterate the obvious, that she, like any other citizen, was

bound to comply with all equal opportunity and labor laws for appropriate hiring

practices. One contract clause specifically denied Petitioner any employee,

servant, or agency authority to bind or incur liability for the college, and

described her as an independent contractor.

18. Mr. Thornton modeled LSCC's contract with Petitioner on the contract

drafted by the 1986 facilitator from Washington, D.C., who was clearly an

independent contractor. According to Dr. Kenneth Stack, the contract as

finalized is similar to the standard contract by which LSCC contracts for

outside labor, power, and such professional services as those of architects,

normally considered to be independent contractors. This facilitator contract

differs significantly from Petitioner's employment contract as Director of

Financial Aid for LSCC prior to her retirement on July 1, 1992, the form of

which employment contract is prescribed by the Florida Community College System.

19. After negotiating with Mr. Thornton, who was acting for the Board in

the place of the college's general counsel, Petitioner had input into the final

version of the facilitator contract. Exactly what Petitioner's input was, is

unclear. Although there is some testimony that the former facilitator was paid

in a lump sum of $20,000, there is also testimony that the total payments to

that facilitator by LSCC totalled $45,000. Although this fact, together with

the contents of the final contract between Petitioner and LSCC is not sufficient

to infer that the prior out-of-state facilitator was also paid at an hourly rate

up to a certain capped amount plus an expense reimbursement, it is sufficient to

infer that expense reimbursement was part of the prior out-of-state independent

contractor's agreement with the college.

20. Petitioner's $40/hour fee as "facilitator" constituted a higher hourly

rate than she had been paid when employed by LSCC as its Financial Aid Director

prior to retirement.

21. Petitioner was not covered for health insurance or unemployment or

workers' compensation benefits under her contract as presidential search

facilitator. No social security, retirement, or income tax was withheld by LSCC

from her hourly rate as facilitator. LSCC provides all its regular employees

with these fringe benefits.

22. In practice, as LSCC presidential search committee facilitator,

Petitioner used her own telephone and the LSCC telephone. She worked out of an

established office in her own home where she simultaneously cared for her 92

year old mother. She also had the use of, and occasionally utilized, the Board

room at LSCC which the Board of Trustees had been made available to her and the

search committee whenever the Board was not using it. Because there was no

college president, the secretary assigned to the president was available for

Petitioner's use, and this secretary did some minimal work for Petitioner,

primarily copying materials for the search committee members. An employee of

LSCC who regularly deals with equity matters also was available to Petitioner

and the search committee for advice as needed.

23. As facilitator, Petitioner utilized a comprehensive notebook compiled

by a prior Chairman of the LSCC Board of Trustees in the course of the 1986

presidential search. She also utilized two professional books she specifically

purchased in order to fulfill her contract with LSCC. Petitioner gave the

Board-appointed search committee their direction, worked with a subcommittee to

design the advertisement for position, received all applications, analyzed them,

and copied and distributed them to the search committee. After the committee

read and ranked the applications and selected the finalists, Petitioner did

background checks on the finalists and held personal conversations with

applicants' employers, prior employers, and colleagues to get a "feel" for each

applicant's qualifications. She then reported these findings to the search

committee, and apparently another "cut" was made. She coordinated all visits,

receptions, and committee interviews for the last five presidential finalists.

In this process, she took no direction from LSCC's Acting President, Dr. Kenneth

Stack, who was an applicant, and the Board of Trustees' input was more in the

nature of questions concerning what was she doing and what were the search

committee's time frames, than directions on what to do or how to do it.

24. On her own initiative, Petitioner gave interim reports on the search

committee's progress, usually at the regularly scheduled monthly Board of

Trustees meetings, until the final presidential candidates were chosen, at which

time the Board met weekly for the specific purpose of selecting the college

president. Petitioner was required to bill her hours and expenses monthly but

was not required to appear before the Board of Trustees. She was never summoned

to appear before the Board. She had to ask to be put on the Board agenda each

time she gave a report. On the basis of her education, training, experience,

investigation, and analysis, Petitioner made suggestions to the Board of

Trustees as to search procedures, deadlines, the profile of the president, and

advertising the college presidency position.

25. The LSCC Board of Trustees voted on the selection of a college

president in April 1993. By its terms, Petitioner's contract terminated with

the selection of a college president.

26. The presidential search was not a regularly established function of

the college, although employment of a college president was integral to the

college's function and purpose. The search committee and search committee

facilitator were not regularly established job positions with the college.

27. Petitioner did not incorporate because no state license or

certification is required for her services. She also did not advertise her

services because she planned to work only intermittently as an independent

contractor/consultant in a variety of higher education/administrative fields,

relying on her professional networking to get offers of specific projects. At

the time of formal hearing, she had the potential for contracts to do financial

aid counseling at Seminole Community College and to rewrite a policy and

procedure manual for South Florida Community College.

28. LSCC paid Petitioner approximately $435 for her work for LSCC during

the month of October 1992, plus some reimbursed expenses.

29. In November 1992, DOR advised Petitioner it had determined that she

was an employee and not an independent contractor. Prior to advising

Petitioner, DOR requested the federal Internal Revenue Service (IRS) render its

opinion. This opinion concluded that Petitioner was an employee of LSCC rather

than an independent contractor, but the IRS opinion is not binding upon DOR or

dispositive of this instant de novo proceeding pursuant to Section 120.57(1)

F.S. It is noted that the review sheets filled out by LSCC and Petitioner and

utilized by DOR and the IRS were not as detailed as the evidence adduced at

formal hearing, and in some respects the answers were unintentionally

misleading.

30. At some point, DOR demanded approximately $435 from Petitioner and

$1,018.79 from LSCC for retirement benefits DOR had paid Petitioner during

October 1992, but apparently DOR now seeks $2,037.58 solely from Petitioner.

31. Because of the controversy with Respondent DOR, Petitioner did not

accept any payment from LSCC pursuant to their facilitator contract after

October 1992, when she was notified by DOR that any payment from LSCC for

employment would result in a DOR repayment demand and/or withholding of her FRS

benefits by DOR.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this cause pursuant to Section 120.57(1), F.S.

33. Chapter 121, F.S., established the Florida Retirement System in 1970.

The Division of Retirement, pursuant to Section 121.031(1), F.S. [1991], is

authorized to implement rules for the efficient administration of the system.

34. Pursuant to Section 121.021(11) F.S. [1991],

"Officer or employee" means any person

receiving salary payments for work performed

in a regularly established position and, if

employed by a city or special district,

employed in a covered group.

35. The Division of Retirement also promulgated Rule 60S-6.011(49),

F.A.C., which defines a regularly established position as follows:

A regularly established position in a State

agency is a position which is authorized and

established pursuant to law and is

compensated from a salaries appropriation

pursuant to Section 216.011(1)(y)1. and 2.,

F.S., or an established position which is

authorized pursuant to Section 216.262(1)(a)

and (b) F.S., and is compensated from a

salaries account in accordance with Rule

3A-10.031, F.A.C. A regularly established

position in a local agency (district school

board, county agency, community college, city

and special district) is an employment

position which will be in existence for a

period beyond 6 consecutive months, except as

provided in Rule 60S-1.004(5)(e), F.A.C.

36. Rule 60S-6.001(33), F.A.C., promulgated by the Division, defines

independent contractor and reads as follows:

(33) INDEPENDENT CONTRACTOR - Means 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. 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.

1. INSTRUCTIONS: An employee must comply

with instructions from his employer about

when, where, and how to work. The

instructions may be oral or may be in the

form of manuals or written procedures which

show how the desired result is to be

accomplished. Even if no actual instructions

are given, the control factor is present if

the employer has the right to give

instructions.

2. TRAINING: An employee is trained to

perform services in a particular manner.

This is relevant when the skills and

experience which would be used as an

independent contractor were gained as a

result of previous employment. Independent

contractors ordinarily use their own methods

and receive no training from the purchasers

of their services.

3. INTEGRATION: An employee's services

are integrated into the business operations

because the services are critical and

essential to the success or continuation of

an agency's progress/operation. This shows

that the employee is subject to direction and

control.

4. SERVICES RENDERED PERSONALLY: An

employee renders services personally. This

shows that the employer is interested in the

methods as well as the results. Lack of

employer control may be indicated when a

person has the right to hire a substitute

without the employer's knowledge or approval.

5. HIRING ASSISTANTS: An employee works

for an employer who hires, supervises, and

pays assistants. An independent contractor

hires, supervises, and pays assistants under

a contract that requires him or her to

provide materials and labor and to be

responsible only for the result.

6. CONTINUING RELATIONSHIP: An employee

has a continuing relationship with an

employer. A continuing relationship may

exist where work is performed at frequently

recurring, although irregular intervals.

7. SET HOURS OF WORK: An employee usually

has set hours of work established by an

employer. An independent contractor is the

master of his or her own time and works on

his own schedule.

8. FULL-TIME OR PART-TIME WORK: An

employee may work either full-time or part-

time for an employer. Full-time does not

necessarily mean an 8-hour day or a 5 or

6-day week. Its meanings may vary with the

intent of the parties, the nature of the

occupation and customs in the locality.

These conditions should be considered in

defining "full-time." An independent

contractor can work when and for whom he or

she chooses.

9. WORK DONE ON PREMISES: An employee

works on the premises of an employer, or

works on a route or at a location designated

by an employer. The performance of work on

the employer's premises is not controlling in

itself; however, it does imply that the

employer has control over the employee. Work

performed off the employer's premises does

indicate some freedom from control; however,

it does not in itself mean the worker is not

an employee.

10. ORDER OR SEQUENCE OF SERVICES: An

employee generally performs services in the

order or sequence set by an employer. This

shows that the employee is subject to

direction and control of the employer.

11. REPORTS: An employee submits oral or

written reports to an employer. This shows

that the employee must account to the

employer for his or her actions.

12. PAYMENTS: An employee is usually paid

by the hour, week, or month. An independent

contractor is paid periodically (usually a

percent of the total payment) by the job or

on a straight commission.

13. EXPENSES: An employee's business and/

or travel expenses are paid by an employer.

This shows that the employer is in a position

to control expenses, and, therefore, the

employee is subject to regulations and

control.

14. TOOLS AND MATERIALS: An employee is

furnished significant tools, materials, and

other equipment by an employer. An

independent contractor usually provides his

own tools, material, etc.

15. INVESTMENT: An employee is usually

furnished the necessary facilities. An

independent contractor has a significant

investment in the facilities he or she uses

in performing services for someone else.

16. PROFIT OR LOSS: An employee performs

the services for an agreed upon wage and is

not in a position to realize a profit or

suffer a loss as a result of his services.

An independent contractor can make a profit

or suffer loss. Profit or loss implies the

use of capital by the individual in an

independent business of his own.

17. WORKS FOR MORE THAN ONE PERSON OR

FIRM: An employee usually works for one

organization. However, a person may work for

a number of people or organizations and still

be an employee of one or all of them. An

independent contractor provides his or her

services to two or more unrelated persons or

firms at the same time.

18. OFFERS SERVICES TO GENERAL PUBLIC: An

independent contractor makes his or her

services available to the general public.

This can be done in a number of ways: Having

his/her own office and assistants, hanging

out a "shingle", holding business licenses,

having listings in business directories and

telephone directories, and advertising in

newspapers, trade journals, etc.

19. RIGHT TO TERMINATE EMPLOYMENT: An

employee can be fired by an employer. An

independent contractor cannot be fired so

long as he or she produces a result that

meets the specifications of the contract. An

independent contractor can be terminated, but

usually he will be entitled to damages for

expenses incurred, lost profit, etc.

20. RIGHT TO QUIT: An employee can quit

his or her job at any time without incurring

liability. An independent contractor usually

agrees to complete a specific job and is

responsible for its satisfactory completion,

or is legally obligated to make good for

failure to complete it.

37. Petitioner contended she was an independent contractor and DOR

contended she was an employee. The terms of Petitioner's 1992 facilitator

contract and the actual services Petitioner performed as facilitator equate more

closely with the definition of an independent contractor.

38. The tasks of the presidential search facilitator did not relate to

administering financial aid to students or raising money for college programs

which were the LSCC employment responsibilities and functions from which

Petitioner retired. Her services as a presidential search committee facilitator

were not integral to the nature of LSCC as an institution. Her facilitator

contract and actual work situation did not necessitate Petitioner working with,

for, or over other regularly employed LSCC staff. Specifically, she was not

supervised nor did she report in either chain of command (Dr. Allen or Dr.

Stack) that she had reported in prior to her retirement. While ongoing

financial aid counselling might be highly suspect of "continuing employee"

status, an activity such as a presidential search which is undertaken by the

college only as needed after five or six year gaps and which has a definite,

limited goal and a predictable termination date is not an activity so integral

to the nature of the institution as to confer an "employee" status. See, Nunn,

et al v. Dept. of Administration DOAH Cases Nos. 90-8015, 90-8016, 90-8017,

(Recommended order entered January 15, 1992, Final Order April 9, 1992).

39. As facilitator, Petitioner's association with LSCC was not exclusive,

as it would have been had she been an employee of LSCC. Petitioner was

negotiating for other contracts from other colleges simultaneously with working

as LSCC's facilitator. LSCC did not restrict her to their project at any time

either by contract terms or exercise of cloaked authority.

40. Although the presidential search project does not lend itself to

analysis of risk of profit or risk of loss, it would be hard to say that

Petitioner did not assume substantial risk as facilitator by contracting to

indemnify and hold harmless the college in light of the plethora of equity

statutes and rules which had to be followed. On the other hand, advice to

Petitioner on these matters, provided by a college employee, was prudent on the

college's part but not such a "control" as to significantly affect the bulk of

Petitioner's day-to-day performance of her independent contract.

41. Petitioner earned more per hour on the facilitator contract than she

had when she was employed full-time by LSCC.

42. Under the facilitator contract, Petitioner was outside the normal

fringe benefits of LSCC employees.

43. If Petitioner had been injured while performing her tasks as search

facilitator, even if these tasks were performed on campus, she could not have

successfully proven "employee" status under the tests established pursuant to

Chapter 440 F.S., The Florida Workers' Compensation Act.

44. Petitioner was paid only for the hours she "facilitated" and only if

she billed for the hours worked. The college relied entirely on her

representation of her hours worked and did not supervise those working hours as

to time or location.

45. Any report of her activities to the Board initially required the

Petitioner to request time on the Board's regular agenda. When the Board became

involved weekly in the final selection of a college president from among the

five finalists, the Board was not invading Petitioner's independent discretion

because as facilitator, Petitioner had no vote on who would be hired as

president, anyway. The instructions provided to Petitioner by the Board were

general and directional only. No formal training to Petitioner was provided by

LSCC or the Board, although records of prior facilitated searches were provided

to her.

46. Petitioner, like many independent contractors, was required to work

within certain cost-saving parameters "to the maximum extent possible," using

college Watts lines and secretarial help. She was encouraged to keep travel

expenses down by having her expenses capped, pursuant to Chapter 112, F.S.

However, these expense terms were reasonably negotiated elements of an

independent contract favorable to one party, LSCC. As such, they do not equate

with the day-to-day control of an employee's expenses contemplated in the rule.

47. If one factor is foremost, it is the right of control as to the day-

to-day mode of doing the work. See, Global Home Care, Inc. v. Dept. of Labor,

521 So.2d 220 (Fla. 2nd DCA 1988) and Messer v. Dept. of Labor and Employment,

500 So.2d 1372 (Fla. 5th DCA 1987). The degree of LSCC control necessary to

define Petitioner as an employee of LSCC is absent here. Compare, by analogy,

the circumstances of In re Howard, 4 FALR 542A (Final Order 12/11/81), wherein a

school board attorney was held to be an employee and Henry v. State of Florida,

Dept. of Administration, Div. of Retirement, 4 FALR 1295A (Final Order 4/27/82)

aff. 431 So.2d 677 (Fla. 1st DCA 1983), wherein a hospital attorney was held to

be an independent contractor.

48. DOR places considerable emphasis upon the fact that Petitioner did not

draft the contract with LSCC. However, Petitioner negotiated the contract on a

parity with the college's acting attorney. The contract grossly parallels the

last facilitator's contract, and that facilitator was undeniably an independent

contractor. LSCC uses a similar contract for similar personal services, such as

those of an architect, and architects are normally considered to be independent

contractors. These factors further support the conclusion that Petitioner is a

legitimate independent contractor.

49. DOR also emphasized that Petitioner was not engaged in a distinct

occupation or business and did not advertise or distribute business cards. This

argument is not persuasive of her "employee" status. Petitioner's skills are

somewhat specialized and focused, even if they do not correspond to a distinct

occupation or business. Like most professionals in that vague, jello-like world

of the professional "consultant," Petitioner offers many similar, but not

identical, services to several colleges and is free to peddle her services by

the means most successful and economical for her, i.e. networking instead of

paying for cards and advertisements which are more commonly tools of an

occupation than of a profession.

50. Petitioner's situation correlates closely to the situation in Davis v.

Dept. of Administration, Division of Retirement, 585 So.2d 421 (Fla. 1st DCA

1991), wherein Respondent's predecessor agency initiated forfeiture proceedings

to recover retirement benefits paid to a school board finance officer who, after

retiring, subsequently became associated with another school board. The First

District Court of Appeal resolved the issue in the retiree's favor, determining

he was an independent contractor. Therein, the factors most persuasive to the

court seem to have been that the retiree under independent contract did not

receive the usual employee health, workers' compensation, or social security

benefits or income tax withholding as he would have received if he had been an

employee of the school board. Petitioner's situation is the same as to those

factors. Also, like Davis, Petitioner set her own work schedule, was free to

accomplish her work at a location of her choice, was negotiating other contracts

with other colleges, and was not subject to control or review by any superior

except as to the results of her work.

51. A strong indicator of what type of relationship is involved is what

the parties believed at the time of contract. The Board wanted to save money,

$5,000 versus $20,000. The Board wanted someone to steer the presidential

search in favor of a Florida educator. Petitioner wanted to work at her own

pace and utilize her talents and contacts on a limited basis without working

full-time. This does not sound like the type of "employment" DOR is charged

with preventing.

52. DOR has been rightfully vigilant to ward-off "sweetheart deals"

designed to sidestep legitimate state interests in protecting the actuarial

soundness of the FRS. Actuarial soundness relies on a proper balance of FRS

contributions to benefits. That balance is jeopardized if employers are able to

avoid required FRS contributions by obtaining the same employee services by

immediately utilizing retirees to perform all or some of the same functions they

performed as an employee. See Nunn, supra. However, as in the Davis case, here

there is no evidence of collusive activity between the former employer (LSCC)

and the employee (Petitioner) to retire the employee and still allow the

employer to avail itself of the employee's continued services without

appropriate contribution to FRS. The fact that Petitioner learned her skills

and "paid her dues" networking while working as LSCC's employee is not

controlling. What she did for LSCC as facilitator and how much control LSCC had

over what she did as facilitator is material. The majority of indices provided

by rule show her to be an independent contractor.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

recommended that the Department of Management Services, Division of Retirement

enter a final order absolving Petitioner of any pay back to FRS for the month of

October 1992.

RECOMMENDED this 29th day of October, 1993, at Tallahassee, Florida.

___________________________________

ELLA JANE P. DAVIS, Hearing Officer

Division of Administrative Hearings

The De Soto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of October, 1993.

APPENDIX TO RECOMMENDED ORDER 93-1592

The following constitute specific rulings, pursuant to S120.59(2), F.S.,

upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

1 The factual matters are accepted. The legal argument is

covered in the Conclusions of Law.

2 Accepted (FOF 10).

3 Rejected as argument only. Covered in substance in FOF

3 and 23 and the Conclusions of Law.

4 Accepted (FOF 25).

5 Accepted except as to Conclusion of Law which is covered

in the Conclusions of Law. (FOF 22-25).

6 Accepted except to the degree unnecessary, subordinate

or cumulative (FOF 16-19).

7 Accepted (FOF 12-15).

8 Constitutes a request to rule certain evidence

irrelevant.

Not a PFOF. Covered in FOF 27 and the Conclusions of

Law.

9 Accepted except to the degree unnecessary or

subordinate.

(FOF 27).

10 Rejected as related to matters outside the record which

apparently occurred after formal hearing. Similar

material covered in FOF 27.

Respondent's PFOF

1-17 Accepted (FOF 1-16).

18 Accepted in part and rejected in part upon the greater

weight of the record as set forth in FOF 15.

19 Accepted (FOF 23).

20 Rejected as a Conclusion of Law. See, Conclusions of

Law.

21 Accepted (FOF 17, 22).

22 Rejected because as stated it is misleading. Covered in

FOF 17-19.

23-25 Accepted (FOF 17-25).

26-27 Accepted (FOF 9).

28-29 Accepted (FOF 29).

30 Accepted (FOF 30)

COPIES FURNISHED:

A. J. McMullian, III, Director

Division of Retirement

Cedars Executive Center, Bldg. C

2639 North Monroe Street

Tallahassee, Florida 32399-1560

Sylvan Strickland, Esquire

General Counsel

Department of Management Services

Knight Building, Suite 309

2737 Centerview Drive

Tallahassee, Florida 32399-0950

Larry D. Scott, Esquire

Department of Management Services

Division of Retirement

2639 North Monroe Street, Building C

Tallahassee, Florida 32399-1560

Ms. Evelyn A. Sebree

Post Office Box 150

Umatilla, Florida 32784

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

Order. All agencies allow each party at least 10 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.