CEO 74-6 -- September 3, 1974

STATE EMPLOYEE

ATTORNEY RETAINED ON PART TIME BASIS

BY A STATE AGENCY

To: Herman W. Goldner, Attorney, St. Petersburg

Prepared by: Lawrence A. Gonzalez

SUMMARY:

While the Financial Disclosure Act, Ch. 74-177, Laws of Florida, has broad applicability extending to public officers, candidates, and certain state and local governmental employees, it is not meant to reach persons retained on an individual contractual basis. Such persons are more appropriately classified as independent contractors. 41 Am. Jur.2d Independent Contractors s. 1, 1968. Since Mr. Goldner, an attorney retained part time by the Tampa Bay Transit Authority, has an independent business or occupation and freedom to decide the manner or detail of the performance of his contracted work without control by the authority, he is an independent contractor, not an employee as the law is interpreted. By virtue of that status he is therefore outside the purview of the disclosure law as it pertains to employees.

QUESTION:

Is an attorney retained by the Tampa Bay Regional Transit Authority on a part time basis a state employee within the definition of a public officer pursuant to s. 112.312, F. S., as amended by Ch. 74 177, Laws of Florida, and thus required to file a financial disclosure statement?

The answer to your question is in the negative.

The Financial Disclosure Act, Ch. 74-177, Laws of Florida, is designed to reach public officers, candidates, and, in certain instances, state and local governmental employees. While the statute is intentionally broad in nature, it is not meant to reach persons retained on an individual contractual basis. Such person's status is better equated to that of an independent contractor as distinguished from an employee. As such, the person is outside the disclosure law.

The definition of an independent contractor is generally stated as: "One who, in exercising an independent employment, contracts to do certain work according to his own methods, without being subject to the control of his employer, except as to the product or result of his work." 41 Am. Jur.2d Independent Contractors s. 1, 1968. The two elements which distinguish an independent contractor from an employee are: The contractor has an independent business or occupation; and the contractor is not subject to the control of the employer as to manner or detail of performance of the contracted work.

In your case, you are retained by the Tampa Bay Regional Transit Authority on a part-time basis to represent and counsel the authority in regard to legal matters. Examining your position, one finds that the two distinguishing criteria of an independent contractor are met. You have an independent occupation besides being retained by the transit authority. Also, you have contracted with the authority to provide them with legal representation and counsel and, while this performance must be provided, the authority does not control the detail or manner of performance. Having met the criteria of an independent contractor, your position cannot be classified as that of a local governmental employee. It is therefore the opinion of the Ethics Commission that you are outside of the purview of the financial disclosure law as it pertains to employees.