93-006518
City Of Belleair Beach vs.
Division Of Retirement
Status: Closed
Recommended Order on Monday, March 21, 1994.
Recommended Order on Monday, March 21, 1994.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8CITY OF BELLEAIR BEACH, FLORIDA, )
14)
15Petitioner, )
17)
18vs. ) CASE NO. 93-6518
23)
24DIVISION OF RETIREMENT, )
28)
29Respondent. )
31_________________________________)
32RECOMMENDED ORDER
34Pursuant to notice, the Division of Administrative Hearings, by its duly
45designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the
57above-styled case on February 24, 1994, in Tallahassee, Florida.
66APPEARANCES
67For Petitioner: Thomas Jask, Esquire
72Frazer, Hubbard, Brandt & Trask
77595 Main Street
80Dunedin, Florida 34698
83For Respondent: Jodi B. Jennings, Esquire
89Division of Retirement
92Cedars Executive Center, Building C
972639 North Monroe Street
101Tallahassee, Florida 32399-1560
104STATEMENT OF THE ISSUE
108Whether City of Belleair Beach Treasurer Robert K. Hebden was an
119independent contractor or an employee of the city.
127PRELIMINARY STATEMENT
129By certified letter dated October 11, 1993, the Division of Retirement
140(Division) notified the City of Belleair Beach (City) that the Division regarded
152City Treasurer Robert K. Hebden as a part-time employee and that appropriate
164contributions to the Florida Retirement System were due.
172By Petition for Formal Proceeding, the City challenged the Division's
182determination of Mr. Hebden's employment status. The matter was referred to the
194Division of Administrative Hearings which scheduled and noticed the hearing.
204At hearing, the City presented the testimony of three witnesses and had
216exhibits numbered 1-16 admitted into evidence. The Division presented the
226testimony of two witnesses and had exhibits numbered 3, 7, 11 and 12 admitted
240into evidence.
242No transcript of the hearing was filed. Both parties filed proposed
253recommended orders. The proposed findings of fact are ruled upon as set forth
266in the Appendix which is attached and hereby made a part of this Recommended
280Order.
281FINDINGS OF FACT
2841. The Petitioner City of Belleair Beach (City) is a participating local
296agency of the Florida Retirement System (FRS) and is subject to the laws
309applicable to the FRS. The City began participating in the FRS through the
322adoption of City Ordinance 99 in 1973.
3292. The Respondent Division of Retirement (Division) is the state agency
340charged by statute with the administration of the FRS.
3493. On a date unspecified, the Division's Management Review Section audited
360the City as required by statute. Based on the audit, the Division concluded
373that Mr. Hebden was not an independent contractor, but was a part time employee
387of the City. The Division communicated this information to the City by letter
400of May 27, 1992.
4044. The Division's Enrollment Section, responsible for enrolling employees
413in the FRS, conducted an analysis of the materials obtained by the Management
426Review Section, and concurred in the initial employment status determination.
4365. By letter of October 11, 1993, the Director of the State Division of
450Retirement notified the City that the Division had determined Mr. Hebden to be
463have been an employee in a regularly established position for purposes of the
476FRS from July 1979 through February 1991, and that FRS contributions were due
489for that period.
4926. On October 15, 1993, Mr. Hebden signed an FRS application for service
505retirement. The application was filed with the FRS.
5137. Mr. Hebden completed the application on the suggestion of the
524Enrollment Section Administrator. Mr. Hebden considers himself to have worked
534for the City as an independent contractor and would not have filed an FRS
548application without the request by the enrollment administrator.
5568. In concluding that Mr. Hebden was an employee, the Division reviewed
568all materials furnished by the City. Such materials included copies of
579contracts, billing statements and IRS forms. At all times, the Division has
591been amenable to reviewing any additional documents submitted by the City.
6029. Beginning in 1972, and continuing to February of 1991, Robert K. Hebden
615provided various services to the City. Beginning in July 1979, Mr. Hebden
627served as the City Treasurer.
63210. The position of Belleair Beach City Treasurer is established by city
644ordinance.
64511. The position description for the City Treasurer sets forth duties as
657follows:
658The treasurer works on a daily basis primarily under
667the mayor's supervision but is ultimately accountable
674to the city council. Compiles operating and capital
682expense estimates for annual budget. Forecasts problem
689areas of income and expense and proposes possible
697solutions. Maintains general accounting system and
703appropriate operating cash balances. Submits to
709council a monthly detailed statement of revenue and
717disbursements in contrast with annual budget. Prepares
724for submission to council a detailed financial
731statement as of the end of each fiscal year. Invests
741surplus General Government Funds in conjunction with
748the Mayor or Deputy Mayor and recommends investment of
757Sewer Trust Funds in conjunction with the approved
765Trustee. Provides for payment of bonds and interest
773and maintains files for cancelled coupons and bonds.
781Maintains capital assets inventory including
786acquisition and disposition.
78912. Between July 1, 1979 and February 12, 1991, Mr. Hebden was the
802Belleair Beach City Treasurer. He performed the duties of the position
813description and such additional duties as were assigned at the discretion of the
826Mayor and Council.
82913. In February 1983, Mr. Hebden and the City entered into a written
842contract regarding his service as Treasurer. The initial contract was
852retroactive to October 1, 1982. Prior to this point, Mr. Hebden acted as City
866Treasurer under an oral agreement with the City officials.
87514. The February 2, 1983 contract identifies Mr. Hebden as "the
886Contractor." The contract is for the one year period of October 1, 1982 to
900September 30, 1983 and provides as follows:
907The Contractor will be allowed twelve (12) days of paid
917sick leave and at times mutually agreeable fifteen (15)
926days of vacation without adjustment to the monthly fee.
935Absence in excess of this amount will be adjusted on a
946prorata basis.
948The work week will be 8:30 A. M. to 12:30 P. M. daily,
961Monday through Friday, except for legal holidays
968recognized by the City. In addition, attendance will
976be required at Council meetings, work sessions and
984committee meetings, as may be determined by the Mayor.
993Services will be reimbursed on a monthly basis at the
1003rate of SEVEN HUNDRED DOLLARS ($700.00) per month, plus
1012an allowance of SEVENTY DOLLARS ($70.00) for expenses
1020upon receipt of a statement.
1025This agreement may be extended beyond the original term
1034of One (1) year upon such terms and conditions as the
1045parties shall mutually agree between them.
105115. Beginning with the subsequent agreement dated July 14, 1983, all
1062contracts identify Mr. Hebden as "the City Treasurer" rather than "the
1073Contractor."
107416. The July 14, 1983 contract provides as follows:
1083That Robert K. Hebden shall serve the City of Belleair
1093Beach as the City Treasurer, appointed by the City
1102Council. The services of the City Treasurer shall be
1111performed between the hours of 8:30 a.m. to 12:30 p.m.
1121daily, Monday through Friday, except for legal holidays
1129recognized by the City. In addition, attendance will
1137be required at Council meetings, work sessions and
1145committee meetings, as may be determined by the Mayor.
1154The duties of the City Treasurer shall include but not
1164be limited to:
1167-compilation of current and capital expense
1173estimates for the annual budget
1178-maintenance of a general accounting system
1184-submission to the city council of a monthly
1192detailed statement of revenue and
1197disbursements in contrast with the annual
1203budget
1204-preparation for submission to council of a
1211detailed financial statement as to the end
1218of each fiscal year
1222A RETAINER fee shall be paid by the City of Belleair
1233Beach to the City Treasurer for the above service which
1243shall be EIGHT HUNDRED THIRTY DOLLARS AND NO/100
1251($830.00) per month.
1254THIS AGREEMENT shall be reviewed annually by the
1262Personnel Committee of the City Council, the Mayor and
1271the City Treasurer.
1274THIS AGREEMENT shall expire on September 30 of each
1283year unless renewed by Council prior to that time.
1292THIS AGREEMENT shall be cancelled by either party upon
1301a thirty (30) day notice of intent to do so.
131117. The September 10, 1984 contract for the one year period to September
132430, 1985 is identical to the agreement of July 14, 1983 except that the retainer
1339fee was increased to $900.00 monthly.
134518. The July 15, 1985 contract for the one year period to September 30,
13591986 is similar to the agreement of September 10, 1984. The retainer fee was
1373increased to $1100.00 monthly and paid leave was again included. The agreement
1385provides as follows:
1388....In addition, the City Treasurer shall receive three
1396work-weeks vacation annually (allowing for a base
1403figure of 3 work-weeks for the current fiscal year) and
1413twelve work-days sick leave annually (allowing for
1420twelve work-days for the current fiscal year).
1427THIS AGREEMENT shall be reviewed annually by the
1435Personnel Committee of the City Council, the Mayor and
1444the City Treasurer.
1447THIS AGREEMENT shall commence October 1, 1985, and
1455shall expire on September 30 of each year unless
1464renewed by Council prior to that time.
1471THIS AGREEMENT shall be cancelled by either party upon
1480a thirty (30) day notice of intent to do so.
149019. The September 23, 1986 contract for the one year period to September
150330, 1987 is substantially similar to the preceding contract, however, an
1514amendment was made to the paid leave provisions. The agreement provides as
1526follows:
1527That Robert K. Hebden shall serve the City of Belleair
1537Beach as the City Treasurer, appointed by the City
1546Council. The services of the City Treasurer shall be
1555performed between the hours of 8:30 a.m. to 12:30 p.m.
1565daily, Monday through Friday, except for legal holidays
1573recognized by the City. In addition, attendance will
1581be required at Council meetings, work sessions and
1589committee meetings, as may be determined by the Council
1598or Mayor. The duties of the City Treasurer shall
1607include but not be limited to:
1613- compilation of current and capital expense
1620estimates for the annual budget
1625- maintenance of a general accounting system
1632- submission to the city council of a monthly
1641detailed statement of revenue and
1646disbursements in contrast with the annual
1652budget
1653- preparation for submission to council of a
1661detailed financial statement as to the end
1668of each fiscal year
1672A RETAINER fee shall be paid by the City of Belleair
1683Beach to the City Treasurer for the above service which
1693shall be ELEVEN HUNDRED THIRTY DOLLARS AND NO/100
1701($1100.00) per month. In addition, the City Treasurer
1709shall receive three work-weeks vacation annually and
1716twelve work-days sick leave annually. Annual leave,
1723which will only be applied against working days, and
1732shall be taken in not less than four (4) hour
1742increments, may accrue to a maximum of fifteen (15)
1751days. Annual leave in excess of fifteen (15) days will
1761be forfeited on the following anniversary date after
1769the year in which earned.
177420. The August 3, 1987 contract for the one year period of October 1, 1987
1789to September 30, 1988 is substantially similar to the preceding contract except
1801that the work hours were amended to 8:00 a.m. to 12:30 p.m. and monthly payment
1816was increased to $1300.00.
182021. The September 12, 1988 contract for the one year period of October 1,
18341988 to September 30, 1989 is substantially similar to the preceding contract
1846except that monthly payment was increased to $1350.00.
185422. In 1989, some Council members questioned Mr. Hebden's performance and
1865considered termination of his contract.
187023. The September 25, 1989 contract for the one year period of October 1,
18841989 to September 30, 1990 is substantially similar to the preceding contract
1896except that the agreement provides "for a six months performance evaluation."
1907Apparently, the concerned Council members were satisfied with the review and the
1919contract was again renewed.
192324. The September 10, 1990 contract reflected Mr. Hebden's intention to
1934leave his position. The contract provides as follows:
1942That Robert K. Hebden shall serve the City of Belleair
1952Beach as the City Treasurer, appointed by the City
1961Council. The services of the City Treasurer shall be
1970performed between the hours of 8:00 a.m. to 12:30 p.m.
1980daily, Monday through Friday, except for legal holidays
1988recognized by the City. In addition, attendance will
1996be required at Council meetings, work sessions and
2004committee meetings, as may be determined by the Council
2013or Mayor. The duties of the City Treasurer shall
2022include but not be limited to:
2028- compilation of current and capital expense
2035estimates for the annual budget
2040- maintenance of a general accounting system
2047- submission to the city council of a monthly
2056detailed statement of revenue and
2061disbursements in contrast with the annual
2067budget
2068- preparation for submission to council of a
2076detailed financial statement as to the end
2083of each fiscal year
2087* A RETAINER fee shall be paid by the City of Belleair
2099Beach to the City Treasurer for the above service which
2109shall be [[THIRTEEN HUNDRED AND FIFTY DOLLARS AND
2117NO/100 ($1350.00)]]
2119AND NO/100 ($1450.00)>> per month. In addition, the
2127City Treasurer shall receive [[three work-weeks
2133vacation annually and twelve]]
2139sick leave [[annually. Annual leave, which 2145will only be applied against working days, 2152and shall be taken in not less than four (4) hour 2163increments, may accrue to a maximum of fifteen (15) 2172days. Annual leave in excess of fifteen (15) days will 2182be forfeited on the following anniversary date after 2190the year in which earned.]] 2195through September 30, 1990 and not taken will be 2204paid on completion of this contract.>> 2210[[THIS AGREEMENT shall provide for a six months 2218performance evaluation.]] 2220[[THIS AGREEMENT shall be reviewed annually by the 2228personnel committee of the City Council, the Mayor and 2237the City Treasurer.]] 2240THIS AGREEMENT shall commence October 1, 1985, and 2248shall expire on
225330 of each year unless renewed by Council prior to 2263that time.]] 2265THIS AGREEMENT shall be cancelled by either party upon 2274a thirty (30) day notice of intent to do so. 2284* Note: In the above quotation, language which has been added 2295is within the <>2298>; deleted language is within the [[]]. 230525. All the contracts identified herein were between the City and Mr. 2317Hebden personally. Mr. Hebden signed the contracts. Except as otherwise stated 2328herein, the terms of the contracts were negotiated between Mr. Hebden and the 2341City. 234226. Mr. Hebden performed all the responsibilities of the contract 2352personally. For a brief period, he was assisted by a man identified as "Mr. 2366Denman," a person employed by the City. He hired no assistants. 237727. Mr. Hebden performed his responsibilities according to practices and 2387procedures he created. He was not provided instructions by the City on how to 2401perform his tasks. The City provided no training to Mr. Hebden. 241228. Prior to terminating his tenure as City Treasurer, Mr. Hebden trained 2424his successor in the practices and procedures Mr. Hebden had developed. 243529. At all times during Mr. Hebden's employment with the City, he worked 2448the hours specified by the contracts in his office at City Hall. Mr. Hebden 2462testified that he could not recall how his office hours had been determined. 247530. The space was provided by the City. The responsibilities of Mr. 2487Hebden's position required utilization of city records, and it was therefore 2498appropriate for such tasks to be performed in an office at City Hall. All 2512furnishings for the office and materials used in performing his tasks were 2524provided by the City. 252831. During the period between July 1979 and February 1991, Mr. Hebden 2540submitted to the City statements for payment. Generally, the statements were 2551submitted on a monthly basis. 255632. Mr. Hebden had no risk of profit or loss based on any actions of the 2572City. He had no personal investment in the City. Mr. Hebden was paid according 2586to the terms of the contract. He did not receive additional remuneration for 2599his appearance at or participation in Council meetings, work sessions or 2610committee meetings as directed by the Council or Mayor. 261933. In the first written contract, Mr. Hebden received a payment for "2631expenses" in addition to the monthly remuneration. Additionally, Mr. Hebden 2641was reimbursed for personal expenses related to City business use of his car and 2655his boat. 265734. Although only one formal performance evaluation was completed during 2667his service, the contracts provide for annual review, except for the final 2679contract which terminated Mr. Hebden's service to the City. Upon said 2690termination, Mr. Hebden was paid for the accrued annual leave. 270035. Under the terms of the contract, Mr. Hebden's services could be 2712terminated without penalty upon thirty days notice by either party. 272236. Mr. Hebden did not advertise his services to the general public, 2734because he was not interested in taking on additional work, however, for a time, 2748he provided accounting consulting services to the Indian Rocks Fire Control 2759District and was compensated for his work. He also provided volunteer services 2771to the Church of the Isles. 277737. During the period relevant to this proceeding Mr. Hebden held no 2789business or occupational licenses. 279338. For the years 1979 through 1982, the City reported Mr. Hebden's 2805compensation to the Internal Revenue Service Form by using IRS Form 1099-NEC, 2817the form used to report "Nonemployee Compensation." 282439. For the years 1983 through 1991, the City reported Mr. Hebden's 2836compensation to the Internal Revenue Service Form by using IRS Form 1099-MISC, 2848the form used to report "Miscellaneous Compensation." 285540. The City did not provide health or life insurance coverage to Mr. 2868Hebden. 286941. The City did not pay federal social security or withholding taxes for 2882Mr. Hebden. 288442. The City did not provide or pay workers compensation benefits or 2896unemployment benefits for Mr. Hebden. 290143. The City did not pay retirement contributions to the FRS for Mr. 2914Hebden. 2915CONCLUSIONS OF LAW 291844. The Division of Administrative Hearings has jurisdiction over the 2928parties to and subject matter of this proceeding. Section 120.57(1), Florida 2939Statutes. 294045. The Division of Retirement is authorized to administer the provisions 2951of the Florida Retirement System. Section 121.031(1), Florida Administrative 2960Code. 296146. Membership in the FRS is compulsory for all employees filling full- 2973time or part-time regularly established positions. Rule 60S-1.004(4), Florida 2982Administrative Code. 298447. For purposes of the FRS, an "officer or employee" is defined as any 2998person receiving salary payments for work performed in a regularly established 3009position and , if employed by a city or special district, employed in a covered 3023group. Section 121.021(11), Florida Statutes. 302848. A regularly established position is defined as an employment position 3039which will be in existence for a period beyond six consecutive months. Rule 305260S-1.004(4)(b), Florida Administrative Code. 305649. In considering whether a person is an employee or an independent 3068contractor, the Division Rule 22B-6.01(12), Florida Administrative Code, 3076provides the following definition: 3080CONSULTANT OR OTHER PROFESSIONAL PERSON-- 3085Means an individual who: agrees to provide certain 3093services; works according to his own methods; is not 3102subject to the control of his employer, except as to 3112the results of his work; and does not enjoy the fringe 3123benefits offered by the employer. A consultant or 3131other professional person usually: is compensated from 3138an other salaries and wages account; does not earn 3147annual or sick leave; and may frequently do a majority 3157of his work in his own office rather than on the 3168employer's premises. 317050. In interpreting its rule, the division relies on common law tests of 3183independent contractor status, and specifically the tests formulated by 1 3193Restatement of the Law, Agency (2nd ed.) Section 220, as described in Cantor v. 3207Cochran, 184 So.2d 173 (Fla. 1966). Davis v. Department of Administration, 3218Division of Retirement, 585 So.2d 421 (Fla. 1st DCA 1991). As set forth in 3232Cantor, these tests are as follows: 3238(a) the extent of control which, by the agreement, the 3248master may exercise over the details of the work; 3257(b) whether or not the one employed is engaged in a 3268distinct occupation or business; 3272(c) the kind of occupation, with reference to whether, 3281in the locality, the work is usually done under the 3291direction of the employer or by a specialist without 3300supervision; 3301(d) the skill required in the particular occupation; 3309(e) whether the employer or the workman supplies the 3318instrumentalities, tools, and the place of work for the 3327person doing the work; 3331(f) the length of time for which the person is employed; 3342(g) the method of payment, whether by the time or by 3353the job; 3355(h) whether or not the work is a part of the regular 3367business of the employer; 3371(i) whether or not the parties believe they are 3380creating the relationship of master and servant; and 3388(j) whether the principal is or is not in business. 339851. A review of the criteria as applied to this case is as follows: 3412THE EXTENT OF CONTROL WHICH, BY THE AGREEMENT, THE 3421MASTER MAY EXERCISE OVER THE DETAILS OF THE WORK-- 343052. The description of the duties of the Belleair Beach City Treasurer 3442describe in detail exactly what is expected of the position. The City Treasurer 3455is to compile operating and capital expense estimates for annual budgets, 3466forecast problem areas of income and expense and propose possible solutions, 3477maintain a general accounting system and appropriate operating cash balances, 3487submit a monthly detailed statement of revenue and disbursements in contrast 3498with annual budget, submit a detailed financial statement as of the end of each 3512fiscal year, invest in conjunction with the Mayor or Deputy Mayor surplus 3524General Government Funds, recommend in conjunction with the approved trustee 3534investment of Sewer Trust Funds, provide for payment of bonds and interest, 3546maintain files for cancelled coupons and bonds, and maintain an inventory of 3558capital assets including acquisition and disposition. Mr. Hebden was required 3568to attend various meetings as directed by the Mayor and Council, and to perform 3582other tasks as directed. 358653. Most importantly, the treasurer works on a daily basis under the 3598mayor's supervision and is ultimately accountable to the city council. 3608According to each of Mr. Hebden's contracts, the City Treasurer can be fired 3621with 30 days notice without penalty. As set forth in Cantor, citing Larson on 3635Workmen's Compensation Law: 3638The power to fire is the power to control. The 3648absolute right to terminate the relationship without 3655liability is not consistent with the concept of 3663independent contractor, under which the contractor 3669should have the legal right to complete the project 3678contracted for and to treat any attempt to prevent 3687completion as a breach of contract. 369354. The detailed description of duties and the termination provision in 3704each of Mr. Hebden's contracts are contrary to the assertion of independent 3716contractor status. 3718WHETHER OR NOT THE ONE EMPLOYED IS ENGAGED IN A 3728DISTINCT OCCUPATION OR BUSINESS-- 373255. Mr. Hebden was not engaged in a distinct occupation or business while 3745serving as City Treasurer. He met the employment qualifications set forth on 3757the job description and was employed to perform the duties identified by the 3770City. As City Treasurer, he was engaged, as were other City employees, in 3783conducting the business of the City. 3789THE KIND OF OCCUPATION, WITH REFERENCE TO WHETHER, IN 3798THE LOCALITY, THE WORK IS USUALLY DONE UNDER THE 3807DIRECTION OF THE EMPLOYER OR BY A SPECIALIST WITHOUT 3816SUPERVISION-- 381756. The occupation of City Treasurer is, by job description, done under 3829the immediate supervision of the Mayor and ultimately the City Council. The 3841successor to Mr. Hebden was designated as an employee of the City. There is no 3856credible evidence that Mr. Hebden was permitted to perform the responsibilities 3867of City Treasurer without supervision. 3872THE SKILL REQUIRED IN THE PARTICULAR OCCUPATION-- 387957. Mr. Hebden met the employment qualifications set forth on the job 3891description and was employed to perform the duties identified by the City. As 3904with many occupations, any person meeting the qualifications could have also 3915performed the job. 3918WHETHER THE EMPLOYER OR THE WORKMAN SUPPLIES THE 3926INSTRUMENTALITIES, TOOLS, AND THE PLACE OF WORK FOR THE 3935PERSON DOING THE WORK-- 393958. Because Mr. Hebden required access to City records to perform his job 3952tasks, it is logical that he would maintain an office at City Hall. However, 3966the City provided all furnishings in the office and provided all supplies to Mr. 3980Hebden. Mr. Hebden did not control the hours of his work which were dictated by 3995the employment contract. 3998THE LENGTH OF TIME FOR WHICH THE PERSON IS EMPLOYED-- 400859. Mr. Hebden was continuously employed as City Treasurer for about 12 4020years with no break in service. 4026THE METHOD OF PAYMENT, WHETHER BY THE TIME OR BY THE 4037JOB-- 403860. Mr. Hebden's contracts provide no payment for completion of specific 4049tasks, but instead provide payment for a monthly period. The time expended in 4062attending meetings outside the specified work hours was not additionally 4072compensated, but by the terms of the contracts were included in the monthly pay. 4086WHETHER OR NOT THE WORK IS A PART OF THE REGULAR 4097BUSINESS OF THE EMPLOYER-- 410161. The City Treasurer's position is part of the regular operation of the 4114City. The position is established by ordinance and is subject of a position 4127description in the city's records. 4132WHETHER OR NOT THE PARTIES BELIEVE THEY ARE CREATING 4141THE RELATIONSHIP OF MASTER AND SERVANT-- 414762. It is clear that the parties in this case were not attempting to 4161create a master-servant relationship. The City paid none of the benefits which 4173could suggest the existence of an employer-employee situation. Nonetheless, 4182consideration of the nature of Mr. Hebden's employment as discussed herein, 4193including the City's control over the Treasurer's responsibilities, working 4202conditions, and tenure of employment, indicates that his position was one of an 4215employee of the City. 4219WHETHER THE PRINCIPAL IS OR IS NOT IN BUSINESS-- 422863. Mr. Hebden worked under his own name, had no established business 4240entity, did not advertise his services, made no sustained attempt to seek 4252additional contracts for his services and held no business or occupational 4263licenses. 426464. Based on a review of the applicable rules in this case, the greater 4278weight of the evidence establishes that Mr. Hebden was not an independent 4290contractor but was a employee part time in a regularly established position with 4303the City of Belleair Beach. 430865. In 1991, the Division adopted Rule 60S-6.001(33) Florida 4317Administrative Code, incorporating the Cantor criteria and providing additional 4326standards for determination of independent contractor status. Although the rule 4336was not in effect during Mr. Hebden's tenure as City Treasurer, the rule was in 4351effect at the time the Division rendered its determination as to Mr. Hebden and 4365was applied by the Division. 437066. Application of the factors within Rule 60S-6.001(33) Florida 4379Administrative Code, to this case provides as follows: 4387(33) INDEPENDENT CONTRACTOR-- 4390Means an individual who is not subject to the control 4400and direction of the employer for whom work is being 4410performed, with respect not only to what shall be done 4420but to how it shall be done. If the employer has the 4432right to exert such control, an employer-employee 4439relationship exists and the person is an employee and 4448not an independent contractor. The Division has 4455adopted the following factors as guidelines to aid in 4464determining whether an individual is an employee or an 4473independent contractor. The weight given each factor 4480is not always the same and varies depending on the 4490particular situation. 4492(a) INSTRUCTIONS: An employee must comply with 4499instructions from his employer about when, where, and 4507how to work. The instructions may be oral or may be in 4519the form of manuals or written procedures which show 4528how the desired result is to be accomplished. Even if 4538no actual instructions are given, the control factor is 4547present if the employer has the right to give 4556instructions. 455767. The contract between the City and Mr. Hebden directed the time and 4570place of his employment. The City retained control over the duties of the City 4584Treasurer. Nothing in the contract precluded the City from directing how the 4596tasks were to be performed. 4601(b) TRAINING: An employee is trained to perform 4609services in a particular manner. This is relevant when 4618the skills and experience which would be used as an 4628independent contractor were gained as a result of 4636previous employment. Independent contractors 4640ordinarily use their own methods and receive no 4648training from purchasers of their services. 465468. Mr. Hebden met the job qualifications set forth in the position 4666description. He received no training from the City. 4674(c) INTEGRATION: An employee's services are 4680integrated into the business operations because the 4687services are critical and essential to the success or 4696continuation of an agency's progress/operation. This 4702shows that the employee is subject to direction and 4711control. 471269. The City Treasurer's position is part of the regular operation of the 4725City. The position is established by ordinance and is subject of a position 4738description in the city's records. The position of Treasurer is critical and 4750essential to the continuation of the City's operation. 4758(d) SERVICES RENDERED PERSONALLY: An employee renders 4765services personally. This shows that the employer is 4773interested in the methods as well as the results. Lack 4783of employer control may be indicated when a person has 4793the right to hire a substitute without the employer's 4802knowledge or approval. 480570. Mr. Hebden rendered his services personally. The contracts between 4815the City and Mr. Hebden provided him no right to hire a substitute. His 4829employment as City Treasurer was premised on his individual qualifications. 4839(e) HIRING ASSISTANTS: An employee works for an 4847employer who hires, supervises, and pays assistants. 4854An independent contractor hires, supervises, and pays 4861assistants under a contract that requires him or her to 4871provide materials and labor and to be responsible only 4880for the result. 488371. The sole assistant to Mr. Hebden during his tenure as City Treasurer 4896was another City employee. 4900(f) CONTINUING RELATIONSHIP: An employee has a 4907continuing relationship with an employer. A continuing 4914relationship may exist where work is performed at 4922frequently recurring, although irregular intervals. 492772. Mr. Hebden was continuously employed as City Treasurer for about 12 4939years with no break in service. 4945(g) SET HOURS OF WORK: An employee has a continuing 4955relationship with an employer. An independent 4961contractor is the master of his or her own time and 4972works on his own schedule. 497773. Mr. Hebden's work scheduled was set by contract. He was not 4989contractually permitted to come and go from work at his convenience. His 5001vacation time and sick leave were dictated by the contract, even to the point of 5016the contract provision requiring annual leave be taken in increments of not less 5029than four hours. 5032(h) FULL-TIME OR PART-TIME WORK: An employee may work 5041wither full-time or part-time for an employer. Full 5049time does not necessarily mean an 8-hour day or a 5 or 50616-day week. Its meanings may vary with the intent of 5071the parties, the nature of the occupation and customs 5080in the locality. These conditions should be considered 5088in defining "full-time." An independent contractor can 5095work when and for whom he or she chooses. 510474. Mr. Hebden could not work "when and for whom" he chose. He was 5118required to perform his City Treasurer role according to the schedule set forth 5131in the contract. 5134(i) WORK DONE ON PREMISES: An employee works on the 5144premises of an employer, or works on a route or at a ,5156.location designated by an employer. The performance 5163of work on the employer's premises is not controlling 5172in itself; however it does imply that the employer has 5182control over the employee. Work performed off the 5190employer's premises does indicate some freedom from 5197control; however, it does not in itself mean the worker 5207is not an employee. 521175. Although simple application of this criteria would lead to the 5222conclusion that Mr. Hebden was an employee of the City, the City Treasurer 5235position requires access to City records to perform his job tasks, therefore it 5248is reasonable to maintain an office at City Hall. 5257(j) ORDER OR SEQUENCE OF SERVICES: An employee 5265generally performs services in the order or sequence 5273set by an employer. This shows that the employee is 5283subject to direction and control of the employer. 529176. The order of services provided is set forth in the employment contract 5304which specifies the timing of the Treasurer's reporting responsibilities. 5313(k) REPORTS: An employee submits oral or written 5321reports to an employer. This shows that the employee 5330must account to the employer for his or her actions. 534077. Mr. Hebden's employment contract identifies the reports which must be 5351provided by him to the Mayor and Council. 5359(l) PAYMENTS: An employee is usually paid by the 5368hour, week or month. An independent contractor is paid 5377periodically (usually a percent of the total payment) 5385by the job or on a straight commission. 539378. Mr. Hebden was paid on a monthly basis. 5402(m) EXPENSES: An employee's business and/or travel 5409expenses are paid by an employer. This shows that the 5419employer is in a position to control expenses and 5428therefore the employee is subject to regulations and 5436control. 543779. In the initial written contract, Mr. Hebden received a fixed 5448reimbursement for "expenses" in addition to the monthly payment. He was also 5460reimbursed for personal expenses related to City business use of his car and his 5474boat. 5475(n) TOOLS AND MATERIALS: An employee is furnished 5483significant tools, materials, and other equipment by an 5491employer. An independent contractor usually provides 5497his own tools, materials, etc. 550280. The City provided all furnishings in Mr. Hebden's office and provided 5514all his work supplies. 5518(o) INVESTMENT: An employee is usually furnished the 5526necessary facilities. An independent contractor has a 5533significant investment in the facilities he or she uses 5542in performing services for someone else. 554881. Mr. Hebden had no investment in the City's facilities. 5558(p) PROFIT OR LOSS: An employee performs the services 5567for an agreed upon wage and is not in a position to 5579realize a profit or suffer a loss as a result of his 5591services. An independent contractor can make a profit 5599or suffer loss. Profit or loss implies the use of 5609capital by the individual in an independent business of 5618his own. 562082. Mr. Hebden performed his job for an agreed upon payment. He was not 5634in a position to realize a profit or suffer a loss as a result of his services. 5651He had no capital investment in any independent business of his own. 5663(q) WORKS FOR MORE THAN ONE PERSON OR FIRM: An 5673employee usually works for one organization. However, 5680a person may work for a number of people or 5690organizations and still be an employee of one or all of 5701them. An independent contractor provides his or her 5709services to two or more unrelated persons or firms at 5719the same time. 572283. Mr. Hebden provided accounting consulting services to the Indian Rocks 5733Fire Control District and was compensated for his work. He provided volunteer 5745services to the Church of the Isles. 5752(r) OFFERS SERVICES TO GENERAL PUBLIC: An independent 5760contractor makes his or her services available to the 5769general; public. This can be done in a number of ways: 5780Having his/her own office and assistants, hanging out a "5789shingle," Holding business licenses, having listings 5795in business directories and telephone directories, and 5802advertising in newspapers, trade journals, etc. 580884. Mr. Hebden did not advertise his services to the general public. He 5821held no business or occupational licenses. 5827(s) RIGHT TO TERMINATE EMPLOYMENT: An employee can be 5836fired by an employer. An independent contractor cannot 5844be fired so long as he or she produces a result that 5856meets the specifications of the contract. An 5863independent contractor can be terminated but usually he 5871will be entitled to damages for expenses incurred, lost 5880profit, etc. 588285. Under the terms of the contract, Mr. Hebden's employment could be 5894terminated without penalty upon thirty days notice by the City. 5904(t) RIGHT TO QUIT: An employee can quit his or her 5915job at any time without incurring liability. An 5923independent contractor usually agrees to complete a 5930specific job and is responsible for its satisfactory 5938completion, or is legally obligated to make good for 5947failure to complete it. 595186. Under the terms of the contract, Mr. Hebden could quit his job as City 5966Treasurer without penalty upon thirty days notice to the City. 597687. Application of Rule 60S-6.001(33), Florida Administrative Code to the 5986facts in this case further establishes that Mr. Hebden was not an independent 5999contractor but was a employee part time in a regularly established position with 6012the City of Belleair Beach. 6017RECOMMENDATION 6018Based on the foregoing Findings of Fact and Conclusions of Law, it is 6031hereby 6032RECOMMENDED that the Department of Management Services, Division of 6041Retirement, enter a Final Order determining that as City Treasurer of the City 6054of Belleair Beach from July 1979 through February 1991, Robert K. Hebden was an 6068employee of the City, and as such was a compulsory member of the Florida 6082Retirement System for which contributions from the City are due. 6092DONE and RECOMMENDED this 21st day of March, 1994, in Tallahassee, Florida. 6104__________________________________ 6105WILLIAM F. QUATTLEBAUM 6108Hearing Officer 6110Division of Administrative Hearings 6114The DeSoto Building 61171230 Apalachee Parkway 6120Tallahassee, FL 32399-1550 6123(904) 488-9675 6125Filed with the Clerk of the 6131Division of Administrative Hearings 6135this 21st day of March, 1994. 6141APPENDIX TO CASE NO. 93-6518 6146The following constitute rulings on proposed findings of facts submitted by 6157the parties. 6159Petitioner 6160The Petitioner's proposed findings of fact are accepted as modified and 6171incorporated in the Recommended Order except as follows: 61793. Rejected, contrary to the greater weight of the evidence. Mr. Hebden 6191submitted invoices for payment as early as July, 1979. 620011. Rejected, not supported by greater weight of the evidence. Because 6211Mr. Hebden developed his own procedures for performing the duties of the City 6224Treasurer, and trained his successor in performing the tasks of City Treasurer, 6236it is not possible to conclude that Mr. Hebden's services were "not essential to 6250the success or continuation of the City's operation." 625814. Rejected, irrelevant. 626115. Rejected, contrary to greater weight of evidence. Mr. Hebden 6271testified on direct examination that he could not recall who chose the work 6284hours set forth by contract. All contracts specify the hours to be worked. As 6298to leave time, the first contract provided that such leave could be used only "6312at times mutually agreeable...." Subsequent contracts required annual leave to 6322be used in four hour increments. 632819. Rejected, contrary to greater weight of evidence. Mr. Hebden 6338testified that some auto and boat expenses had been reimbursed. First contract 6350and invoices for payment through September 30, 1982 include payment of sums for "6363expenses." 636420. Rejected, contrary to greater weight of evidence. The contracts 6374specify standard hours of employment and require attendance at meetings as 6385directed by the Mayor and Council. The Respondent's assertion that Mr. Hebden "6397could make a profit or suffer a loss" is unsupported by credible evidence. 6410Respondent 6411The Respondent's proposed findings of fact are accepted as modified and 6422incorporated in the Recommended Order except as follows: 64305. Rejected, as to employment status of Mr. Hebden's predecessor or 6441successor as City Treasurer, irrelevant. 644628, 30. Rejected, as to employment status of Mr. Hebden's successor as 6458City Treasurer, irrelevant. 6461COPIES FURNISHED: 6463A. J. McMullian, III, Director 6468Division of Retirement 6471Cedars Executive Center, Bldg. C 64762639 N. Monroe St. 6480Tallahassee, Florida 32399-1560 6483William H. Lindner, Secretary 6487Knight Building, Suite 307 6491Koger Executive Center 64942737 Centerview Drive 6497Tallahassee, Florida 32399-0950 6500Paul A. Rowell, General Counsel 6505Knight Building, Suite 312 6509Koger Executive Center 65122737 Centerview Drive 6515Tallahassee, FL 32399-0950 6518Thomas J Trask, Esquire 6522Frazer, Hubbard, Brandt & Trask 6527595 Main Street 6530Dunedin, Florida 34698 6533Jodi B. Jennings, Esquire 6537Division of Retirement 6540Cedars Executive Center, Building C 65452639 North Monroe Street 6549Tallahassee, Florida 32399-1560 6552NOTICE OF RIGHT TO SUBMIT EXCEPTIONS 6558All parties have the right to submit written exceptions to this Recommended 6570Order. All agencies allow each party at least ten days in which to submit 6584written exceptions. Some agencies allow a larger period within which to submit 6596written exceptions. You should contact the agency that will issue the final 6608order in this case concerning agency rules on the deadline for filing exceptions 6621to this Recommended Order. Any exceptions to this Recommended Order should be 6633filed with the agency that will issue the final order in this case.

- Date
- Proceedings
- Date: 05/02/1994
- Proceedings: Final Order filed.
-
PDF:
- Date: 03/21/1994
- Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held February 24, 1994.
- Date: 03/07/1994
- Proceedings: Proposed Recommended Order filed. (From Thomas J. Trask)
- Date: 03/07/1994
- Proceedings: Respondent's Proposed Recommended Order filed.
- Date: 02/24/1994
- Proceedings: 94-527Final Hearing Held; for applicable time frames, refer to CASE STATUS form stapled on right side of Clerk's Office case file.
- Date: 02/18/1994
- Proceedings: (Petitioner) Notice of Taking Deposition; Respondent's Objection to Petitioner's Notice of Takign Deposition; Joint Prehearing Stipulation; Petitioner's Response to Respondent's First Request forProduction of Documen ts to Petitioner; Petiti
- Date: 02/18/1994
- Proceedings: (Petitioner) Motion for Extension of Time to Complete Discovery w/cover Letter filed.
- Date: 02/17/1994
- Proceedings: (Respondent) List of Exhibits filed.
- Date: 01/31/1994
- Proceedings: (Respondent) Notice of Taking Deposition filed.
- Date: 01/04/1994
- Proceedings: Order Establishing Prehearing Procedure sent out.
- Date: 12/28/1993
- Proceedings: Respondent's First Request for Production of Documents; Notice of Service of Respondent's Interrogatories to Petitioners filed.
- Date: 12/20/1993
- Proceedings: Notice of Hearing sent out. (hearing set for 2-24-94; 9:30am; Tallahassee)
- Date: 11/29/1993
- Proceedings: Letter. to WFQ from Jodi B. Jennings re: Reply to Initial Order filed.
- Date: 11/17/1993
- Proceedings: Initial Order issued.
- Date: 11/12/1993
- Proceedings: Notice of Election to Request Assignment of Hearing Officer; Agency Action letter; Petition for Formal Proceeding filed.
Case Information
- Judge:
- WILLIAM F. QUATTLEBAUM
- Date Filed:
- 11/12/1993
- Date Assignment:
- 11/17/1993
- Last Docket Entry:
- 05/02/1994
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO