STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARSHALL T. HAZLEWOOD, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3053

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, on January 5, 1984, in Orlando, Florida.

APPEARANCES

For Petitioner: Marshall T. Hazlewood, pro se

333 McLeod Drive Cocoa, Florida 32922

For Respondent: Charles G. Gardner, Esquire

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301

BACKGROUND

This matter arose when petitioner, Marshall T. Hazlewood, who was employed by respondent, Department of Transportation, was requested to return a state warrant in the amount of $1,005.68 which represented lump sum payment for 238.50 hours of annual leave given to him at his retirement effective July 14, 1983.

The Department contended that Hazlewood had been given $324 in excess compensation because of an error in calculating accrued leave on his retirement date.

Respondent denied that the state had erred in calculating his accrued leave and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was referred to the Division of Administrative Hearings by respondent on September 24, 1983 with a request that a Hearing Officer be assigned to conduct a hearing.

By notice of hearing dated November 3, 1983, a final hearing was scheduled for January 5, 1984 in Orlando, Florida. At the final hearing petitioner testified on his own behalf and offered petitioner's exhibit 1 which was received in evidence. Respondent presented the testimony of David S. Ferguson, Department chief of personnel and management development, and offered respondent's exhibits 1-15; all were received in evidence.

The transcript of hearing was filed on March 2, 1984. The parties waived the right to file proposed findings of fact and conclusions of law.

The issue herein is whether petitioner's accrued annual leave on retirement was properly calculated by the Department.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Marshall T. Hazlewood, was an employee of respondent, Department of Transportation (DOT), from April 12, 1972 until July 14, 1983 at the Pinetta Toll Plaza in Satellite Beach, Florida. He served in the positions of toll collector, shift supervisor and manager I at that facility.

   
   

2. In April, 1983 Hazlewood advised his supervisor that he would retire in July, 1983. By this time, Hazlewood had accumulated annual leave in excess of

   240 hours, as well as an undisclosed amount of compensatory time and sick leave. His supervisor asked him not to use his annual leave in excess of 240 hours until July, or just prior to his retirement, because of a shortage of other personnel services (OPS) money for that fiscal year. In other words, if Hazlewood used his leave in April, May or June, the supervisor would necessarily have to use current fiscal year OPS funds to hire a temporary replacement. Hazlewood acquiesced and continued to work until June without taking annual leave.

   
   

3. On June 16, 1983 Hazlewood put in an annual leave slip requesting annual leave (except for July 4, a holiday, and his personal holiday) from June

   27 through July 14, 1983, his retirement date. This brought his total annual leave down to 238.50 hours as of the close of July 14, his date of retirement. The leave slip was approved by his supervisor and forwarded to the bureau chief in Tallahassee. He also spoke by telephone with the coordinator for the Tampa section and the assistant bureau chief in Tallahassee concerning his retirement. Whether he told them of his plans to use annual leave the last few weeks of employment was not disclosed. In any event, no one questioned his leave slip.

   
   

4. When he retired on July 14, 1983 Hazlewood received his normal pay plus compensation for unused sick leave. He also received a warrant in the amount of

   $1,005.68 which represented compensation for 238.50 hours of unused annual leave.

   
   

5. Because the pay system at DOT is computerized, and not manually checked until several weeks later, Hazlewood received his final pay without a hitch. Later on, after a manual review of his file was made, it was learned that Hazlewood's final pay had been improperly computed. DOT requested a return of the warrant, and apparently reissued a second warrant which was $324 less than the first. That prompted the instant proceeding.

   
   

6. According to Rule 22A-8.10(4)(c), Florida Administrative Code, promulgated by the Department of Administration (DOA), and which must be adhered to by DOT, an employee cannot be paid for leave after his "last official day of employment." An employee's last official day of employment is interpreted to mean when he is physically present on the job. The parties have stipulated that Hazlewood's last official day of employment was June 26, 1983, when he actually reported to work. The DOA also interprets the rule to prohibit the taking of annual leave in conjunction with an employee's separation from service. This

   includes the taking of such leave merely to use up sick leave or to bring one's total annual leave down to the maximum reimbursable amount of 240 hours. These interpretations were disseminated by DOT to all of its field offices, including the chief of toll facilities, as early as October, 1981, and are generally described on page 21 of the DOT Employee Handbook which Hazlewood had. They are also expressed in "Interpretation of Attendance and Leave Rules" issued by the DOA. After determining Hazlewood's last date of employment to be June 26, his balance of annual leave was properly reduced to 176 hours rather than 238.50 hours. This balance was arrived at by deducting those hours of leave improperly used during the pay period ending July 14, 1983, and for which he had already been paid, from the 240 maximum hours one can accumulate at date of retirement. The DOT accordingly reissued Hazlewood a check for 176 hours of unused leave, which was $324 less than the amount previously given to him. This was actually less than the amount DOT should have deducted, for it did not seek to recover excess payments during the two-week pay period ending June 30, 1983.

   
   

7. Petitioner contends that because no one advised him that taking leave in the manner he did was improper, it is unfair to now penalize him for doing so. He also points out that his supervisor approved the leave slip and was the one who suggested he delay taking leave until July because of budgetary problems. He considers it morally wrong for DOT to treat him in the manner that it has.

   
   

8. The DOT acknowledged that the leave slip was approved, but stated the supervisor was apparently unaware of existing Department policy. It contends that all non Tallahassee offices are periodically advised of personnel rules, and that the Hazlewood case was one of a few that sometimes occurs. After the Hazlewood error came to light, DOT issued another memorandum on September 1, 1983 to all personnel explaining the policy for leave time upon separation from service.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

10. Rule 22A-8.03(4), Florida Administrative Code, provides in part as follows:

    
    

    (4) All time taken off as approved

    leaves of absences with pay and observance of holidays prior to the employee's last full day of actual work shall be compen sated in accordance with Section 22A-8.06. (Emphasis added.)

    
    

11. Rule 22A-8.10(4)(d)2., Florida Administrative Code, provides in part:

    
    

    . . . All such payment for accrued annual leave shall be made in lump sum and the employee shall not be carried on the agency payroll beyond the last official day of employment.

    
    

12. Because Hazlewood's last official day of employment was June 26, 1983, he was not entitled to be compensated for unused annual leave after that date.

    It is concluded, therefore, that Hazlewood was not entitled to receive $1,005.68 upon separation of service for unused annual leave, but should have received

    $324 less. His petition should accordingly be denied.

    
    

13. Hazlewood should not be faulted for having sought this relief. It was only through his willingness to forego annual leave at his supervisor's request that he found himself in this dilemma. This was compounded by his supervisor's apparent lack of knowledge of Department rules when the leave slip was approved. Unfortunately, the rules do not permit recovery in situations such as this, and Hazlewood has advanced no legal theory which would enable him to prevail.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Marshall T. Hazlewood to have reinstated

$324 in payments for unused annual leave be DENIED.

DONE and ENTERED this 8th day of March, 1984, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1984.

COPIES FURNISHED:

Mr. Marshall T. Hazlewood

333 McLeod Drive Cocoa, Florida 32922

Charles G. Gardner, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301

Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 83-003053

Orders for Case No: 83-003053