CEO 74-7 -- September 25, 1974

FINANCIAL DISCLOSURE LAW

APPLICABILITY OF EMPLOYEE DEFINITION

TO CITY CONSULTING ENGINEER

To: Jerry Pollock, City Attorney, Davie

Prepared by: Gerald Knight

SUMMARY:

In common legal usage, the term "employee" is distinguished from that of "independent contractor"; cf. Gentile Brothers Co. v. Florida Industrial Commission, 151 Fla. 857, 10 So.2d 568 (1942); 1 Restatement of the Law, Agency (2d ed.), s. 220(2); 17 Fla. Jur. Independent Contractors s. 4, p. 176; and Cantor v. Cochran, 184 So.2d 173 (Fla. 1966). An employee is subject to his employer's control in performance of his duties; an independent contractor is not so subject. The city consulting engineer of Davie, Florida, is held to be an independent contractor outside the purview of the Code of Ethics.

QUESTION:

Does the code of ethics and financial disclosure procedure for public officers and employees, part III, Ch. 112, F. S., as amended by Chs. 74-176 and 74-177, Laws of Florida, apply to a city consulting engineer?

The new code of ethics and financial disclosure procedure enacted by Chs. 74-176 and 74-177, Laws of Florida, amending part III, Ch. 112, F. S., applies to public officers and employees. Since the consulting engineer which you describe is apparently not a "public officer" or "officer," as defined in s. 112.312(7), F. S., created by s. 2 of Ch. 74-177, supra, he would not be subject to the financial disclosure requirements of s. 112.3145, F. S. The significant question here is whether such consulting engineer is a public employee; and since "public employee" or "employee" is not defined in part III of Ch. 112, supra, it is necessary to examine the common legal usage of that term.

In this regard, a distinction is ordinarily drawn between an "employee" and an "independent contractor," the latter being an individual who enters a contractual relationship with another but is not controlled or subject to the control of the other party in the performance of the engagement except as to results. Gentile Brothers Co. v. Florida Industrial Commission, 151 Fla. 857, 10 So.2d 568 (1942). See also 1 Restatement of the Law, Agency (2d ed.), s. 220(2); 17 Fla. Jur. Independent Contractors s. 4, p. 176; Cantor v. Cochran, 184 So.2d 173 (Fla. 1966). An "employee," on the other hand, is ordinarily defined as one who is subject to his employer's control in the performance of his duties. Id.

Applying the foregoing traditional definition of "employee" to the instant inquiry, we are of the opinion that the consulting engineer to whom you refer is more in the nature of an independent contractor. Thus, such engineer is not subject to the code of ethics or financial disclosure procedure established by Chs. 74-176 and 74-177, supra.

The foregoing does not exclude the possibility of a different interpretation based upon other facts than those you have given us. In short, it is the nature of the engagement that controls, not the title utilized.