CEO 78-65 -- September 8, 1978

(Revoked; see CEO 79-24)

CODE OF ETHICS

APPLICABILITY TO COUNTY ENGINEER PAID AS PART-TIME EMPLOYEE BUT RETAINED AS CONSULTING ENGINEER

To: (Name withheld at the person's request.)

Prepared by: Phil Claypool

SUMMARY:

The Code of Ethics for Public Officers and Employees, as contained in part III, Ch. 112, F. S., is applicable only to persons who are public officers, employees of a governmental unit, or candidates for public office. Persons who are "independent contractors" rather than "employees" are not subject to provisions of the code. See CEO's 76-29, 77-25, and 77-132. No hard and fast rule may be stated to control the determination of the question as to whether one occupies the status of employee or that of independent contractor; rather, each case must stand on its own facts. The Florida courts have adopted the tests formulated by 1 Restatement of the Law, Agency (2nd ed.) s. 200 in determining whether an employer-employee relationship exists, with the triers of fact determining whether there is a sufficient group of favorable factors to establish the relation. Additional factors are set forth in 41 Am. Jur.2d Independent Contractors (1968). In the case of a professional engineer with a private, consulting engineering practice who also serves as a county engineer, the factual circumstances presented furnish evidence for both an employee and an independent contractor status. However, based upon all of these circumstances, sufficient factors are found to indicate that the engineer is an independent contractor with the county rather than an employee of the county. Accordingly, he is not deemed to be a public employee subject to the Code of Ethics.

QUESTION:

Am I, the county engineer for ____ County, a public officer or employee subject to the Code of Ethics for Public Officers and Employees, when I have been hired by the county as a consulting engineer with a private practice but am paid as a part-time county employee?

This question is answered in the negative.

We have previously found that the Code of Ethics for Public Officers and Employees, part III of Ch. 112, F. S., is applicable only to persons who are public officers, employees of a governmental unit, or candidates for public office, and that persons who are "independent contractors" rather than "employees" are not subject to provisions of the code. Commission on Ethics Opinions 76-29, 77-25, and 77-132, and In re Richard Stottler, Commission on Ethics Complaint No. 77-32.

No hard and fast rule may be stated to control the determination of the question as to whether one occupies the status of an employee or that of an independent contractor. Each case must stand on its own facts. Margarian v. Southern Fruit Distributors, 1 So.2d 858 (Fla. 1941). The Florida courts have adopted the tests formulated by 1 Restatement of the Law, Agency (2nd ed.) s. 200 in determining whether an employer-employee relationship exists. Cantor v. Cochran, 184 So.2d 173 (Fla. 1966).

The Restatement tests are as follows:

s. 220. Definition of Servant

(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control.

(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct occupation or business;

(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

(f) the length of time for which the person is employed;

(g) the method of payment, whether by the time or by the job;

(h) whether or not the work is a part of the regular business of the employer;

(i) whether or not the parties believe they are creating the relation of master and servant; and

(j) whether the principal is or is not in business.

The Restatement's comment on this section states that the above factors are all to be considered in determining the question, and that it is for the triers of fact to determine whether or not there is a sufficient group of favorable factors to establish the relation. Additional factors which have been considered by the courts in determining this question are set forth in 41 Am. Jur.2d Independent Contractors (1968). These factors include: The contractor's right to employ assistants or to delegate or substitute others to do the work; the employer's deduction, withholding, or payment of taxes on the person employed; the power to terminate the relationship or to discharge the person employed; and by whom the contractor's servants are paid.

In your letter of inquiry you advise that you are a professional engineer with a private consulting engineering practice and that you are the county engineer for ____ County. The following facts and circumstances of your relationship to the county in that capacity have been set forth by you in your original letter of inquiry, in subsequent correspondence, and in a telephone conversation with our staff.

As county engineer, you appear to have three general types of responsibilities to the county. First, you advise the board of county commissioners during its meetings as to whether the minimum requirements of the county's engineering regulations and specifications have been complied with in a particular case. This is an advisory function only, requiring the engineering experience and ability to ascertain the problem in relation to the regulations, with all decisions being made by the county commission. Secondly, a large part of your work as county engineer arises from your acting as a liaison in engineering matters between the commission and other state and local agencies. Finally, upon occasion, the commission has requested you to prepare the plans for small county projects. You have considered these smaller jobs to be part of your responsibilities as county engineer, but where larger projects are involved you have entered into a separate agreement with the county. In conclusion, the nature of these responsibilities seems to have no particular bearing on the issue of whether you are an independent contractor, because, although they involve professional services, they could be performed by one who is clearly a permanent, full-time employee of the county or by one who is clearly doing so only as part of a much larger, independent consulting engineering practice.

One of the chief distinctions between an independent contractor and an employee is the extent of control which the employer may exercise over the details of the work, as opposed to the result of the work. 17 Fla. Jur. Independent Contractors, s. 2 (1958).

In this respect, you have advised that the county does not dictate which job you work on at what time; nor does the county dictate the hours of your work, other than the fact that you must appear at the commission meetings one or two days a week. In addition, the county does not specify the manner or means of the performance of your job. Thus, this factor strongly suggests that you are not an employee of the county.

You advise that you have a personal contract with the county commission which is an oral agreement that has been renewed each year during the commission's first meeting in January. You also advise that when you accepted the position of county engineer, it was with the clear understanding that you would be allowed to continue your private consulting engineering practice. The fact that you were (and are) engaged in a distinct occupation or business at the time of your initial agreement with the county commission is one indicium of an independent contractor under the Restatement tests, above. Similarly, the fact that the agreement runs from year to year would indicate something other than the usual employee-employer relationship and could constitute a restriction on the county's power to terminate the relationship or discharge you, unlike the situation of an "employee," who may be terminated without giving rise to a cause of action for breach of contract. See Cantor v. Cochran, supra.

There are several other factors present in your relationship with the county which tend to indicate that you are an independent contractor rather than an employee. You advise that you personally furnish all of your materials, tools, and equipment used in your position. Also, you have control over the premises at which you work because your work is performed at your office rather than on county property. In addition, some of the work performed for the county is done by employees of your private consulting business who are paid for this work by you from your county salary rather than directly by the county. As employees of your business, of course, they are subject to control and supervision by you and not by the county.

Nevertheless, there are circumstances present which would characterize you as an employee. In your correspondence you have referred to yourself as a part-time employee and you have advised that you are paid by the county in the same manner as it pays its part-time employees. While you are paid a specified amount each month, based upon the budgetary amount set for the county engineer by the county commission, your monthly check contains deductions for income and social security taxes. Like part-time county employees, you accrue no vacation time or sick leave benefits, but you are entitled to retirement benefits, and you do have insurance which is paid through the county. In one judicial decision, the fact that a company extended retirement and insurance benefits and also deducted income and social security taxes was held sufficient to support a finding that an employer-employee relationship existed. Little v. Poole, 182 S.E.2d 206 (N.C. App.). Under the Restatement tests, these circumstances are merely additional factors to be considered in resolving the question, however persuasive they may be that an employment relationship has been created.

While this is by no means an easy determination, on the whole, based upon all the circumstances of your relationship with the county, we find that there are sufficient factors to indicate that you are an independent contractor with the county rather than an employee of the county. In addition, we acknowledge that, prior to the time this advisory opinion was adopted, you informed us by letter that the board of county commissioners is in the process of changing your compensation from that of a part-time employee with deductions to a monthly lump sum payment without deductions. Accordingly, we find that as County Engineer of ____ County you are not subject to the provisions of the Code of Ethics for Public Officers and Employees.