Does a Florida special district have to pay mileage to an independent contractor?

Plain-English summary

A supervisor of the Duval Soil and Water Conservation District wrote to ask whether an administrative assistant the district planned to hire as an independent contractor would be entitled to mileage. Assistant Attorney General Joslyn Wilson gave informal general comments rather than a formal opinion, partly because the request did not come through the full board with a supporting legal memorandum, which is how the office prefers to receive agency questions.

On the substance, the letter explained that section 112.061 sets standard travel reimbursement rates and rules for public officers, employees, and authorized persons whose travel is paid by a public agency, and that as an independent special district the conservation district falls under that statute. But an independent contractor is generally not an officer, employee, or agent of a government entity, so the statute's reimbursement scheme does not automatically reach one. Citing a prior opinion, the AG said an independent contractor receives travel expense reimbursement only if the arrangement with the agency specifically provides for it; otherwise the assumption is that the contractor's fee already covers travel. The letter also quoted the classic test for who counts as an independent contractor and suggested the district talk it over with its own attorney.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Section 112.061 governs travel reimbursement for public agencies. Its definition of "agency or public agency" in section 112.061(2)(a) sweeps in districts and other separate units of government, which is why the conservation district is covered. Subsection (2)(d) defines an "employee" as someone, other than an officer or authorized person, filling a regular or full-time authorized position and responsible to an agency head; subsection (2)(e) defines an "authorized person" to include someone an agency head authorizes to incur travel expenses, a consultant or adviser asked to contribute time, or a candidate for an executive or professional position.

An independent contractor typically fits none of those categories. The AG relied on a prior opinion for the rule that a contractor must have "expense reimbursement" built into the arrangement, or the office assumes travel is included in the contracted service. To frame whether the assistant truly was an independent contractor, the letter quoted Farmers & Merchants Bank v. Vocelle: a person subject to control only as to the result is an independent contractor, while one subject to control over the means is not, and it is the right of control, not actual interference, that matters. It also cited La Grande v. B & L Services, Inc. for the point that the decisive question is who has the right to direct what is done, and how and when.

Common questions

Q: Does a Florida special district have to pay an independent contractor mileage?
A: Not automatically. The AG said an independent contractor gets travel reimbursement only if the agreement with the agency specifically provides for it.

Q: What happens if the contract is silent on travel?
A: The opinion's view was that, absent an express expense-reimbursement term, the office assumes the contractor's fee already covers travel.

Q: Does section 112.061 cover a conservation district at all?
A: Yes for the agency itself. Section 112.061 applies to public agencies including independent special districts, but its reimbursement rules run to officers, employees, and authorized persons, not to independent contractors.

Q: How do you tell an independent contractor from an employee?
A: Under Farmers & Merchants Bank v. Vocelle, it turns on the right of control: control only over the result points to an independent contractor; control over the means points to an employee.

Citations and references

Statutes:

• s. 112.061, Fla. Stat. (standard travel reimbursement)
• s. 112.061(2)(a), (d), (e), Fla. Stat. (definitions of agency, employee, and authorized person)

Cases:

• Farmers & Merchants Bank v. Vocelle, 106 So. 2d 92 (Fla. 1st DCA 1958), the right-of-control test for independent-contractor status
• La Grande v. B & L Services, Inc., 432 So. 2d 1364 (Fla. 1st DCA 1983), decisive question is who may direct what is done and how

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/soil-water-conserv-dist-mileage
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8229

Original opinion text

The Honorable Calvin Lee

Supervisor, Group Three

Duval Soil and Water

Conservation District

260 U.S. Highway 301, North

Suite 108

Baldwin, Florida 32234

Dear Supervisor Lee:

You state that the Duval Soil and Water Conservation District is considering hiring an administrative assistant as an independent contractor. You ask whether this individual is entitled to mileage.

Initially, I would note that requests from public agencies should come from the head of the agency. When the head is a collegial body such as a board or commission, a request should come from a majority of the members of the board or commission. In addition, this office asks that such a request be accompanied by a memorandum of law prepared by the agency attorney addressing the issue presented. Attorney General Opinions are intended to address only questions of law, not questions of fact, mixed questions of fact and law, or questions of executive, legislative, or administrative policy. In addition, opinions generally are not issued on questions requiring an interpretation only of local codes, ordinances, or charters rather than the provisions of state law. Instead such requests will usually be referred to the attorney for the local government in question.

In an effort to be of assistance, I would generally note that section 112.061, Florida Statutes, establishes standard travel reimbursement rates, procedures, and limitations, with certain exceptions and exemptions, applicable to all public officers, employees, and authorized persons whose travel is authorized and paid by a public agency. As an independent special district, the provisions of section 112.061 would be applicable to the soil and conservation district.[1] Subsection (2)(d) and (e) of the statute defines the terms "employee" and "authorized person:"

"(d) Employee or public employee—An individual, whether commissioned or not, other than an officer or authorized person as defined herein, who is filling a regular or full-time authorized position and is responsible to an agency head.

(e) Authorized person—

1. A person other than a public officer or employee as defined herein, whether elected or commissioned or not, who is authorized by an agency head to incur travel expenses in the performance of official duties.

2. A person who is called upon by an agency to contribute time and services as consultant or adviser.

3. A person who is a candidate for an executive or professional position."

An independent contractor is not generally considered to be an officer, employee, or agent of a governmental entity. As this office stated in Attorney General Opinion 74-155 (available online at: http://myfloridalegal.com/opinions),

"In order for an independent contractor to receive any travel expense reimbursement, his arrangements with the agency must include "expense reimbursement"; otherwise we must assume that the service he renders includes his travel."

Your agreement characterizes the administrative assistant as an independent contractor. I would note that the court in Farmers & Merchants Bank v. Vocelle,[2] in discussing when an individual is an independent contractor, stated:

"If the person serving is merely subject to the control or direction of the owner as to the result to be obtained, he is an independent contractor; if he is subject to the control or the person being served as to the means to be employed, he is not an independent contractor.

• • *

It is the right of control, not actual control or actual interference with the work, which is significant in distinguishing between an independent contractor and a servant. . . ."

You may wish to discuss this matter further with the attorney who advises the district. I hope, however, that the above informal comments may be of assistance.

Sincerely,

Joslyn Wilson

Assistant Attorney General

JW/tsh

[1] See s. 112.061(2)(a), Fla. Stat., defining "Agency or public agency" to mean "[a]ny office, department, agency, division, subdivision, political subdivision, board, bureau, commission, authority, district, public body, body politic, county, city, town, village, municipality, or any other separate unit of government created pursuant to law."

[2] 106 So. 2d 92, 95 (Fla. 1st DCA 1958). And see, La Grande v. B & L Services, Inc., 432 So. 2d 1364 (Fla. 1st DCA 1983) (decisive question is who has the right to direct what shall be done, and how and when it shall be done).