Judges: J. LAWRENCE JOHNSTON
Agency: Department of Health
Latest Update: Feb. 19, 1985
Summary: State worker was credited with too much leave time. Neither limitation, laches nor estoppel bar corrected account despite time. No credits used.
84-3688STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ROBERT J. BRAUN, )
)
Petitioner, )
)
vs. ) CASE NO. 84-3688
) DEPARTMENT OF ADMINISTRATION, ) and DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
A final hearing was held in this case in Tallahassee on December 17, 1984. The issue is whether respondent Department of Health and Rehabilitative Services (HRS) should correct the annual leave account of petitioner Robert J. Braun (Braun), an employee of HRS, by reducing the balance by 125 hours. 1/ Specifically, since Braun concedes the correctness of such a reduction under the rules governing annual leave, the issue is whether HRS is barred from making the correction by Rule 22K- 10.03(4), Florida Administrative Code, by statute of limitations, by the doctrine of estoppel or by the doctrine of laches.
APPEARANCES
For Petitioner: Robert J. Braun, pro se.
Tallahassee, Florida
For Respondent: Daniel C. Brown, Esquire Department of Tallahassee, Florida Administration
Department of Harden King, Esquire Health and Tallahassee, Florida Rehabilitative
Services
FINDINGS OF FACT 2/
Robert J. Braun (Braun) was an employee of the Wakulla County School Board from August 19, 1971 through December 15, 1973. Braun's annual salary upon termination of his employment with the Wakulla County School Board was
$11,400 per annum.
Braun began employment with the Department of Health and Rehabilitative Services (HRS) on December 17, 1973. He has been continuously employed with HRS since that date. His annual salary as of this date is approximately $20,600 per annum.
Upon Braun's termination from employment with the Wakulla County School Board and commencement of employment with HRS, HRS agreed to and did credit Braun with 64 hours of annual leave, which was his annual leave balance with the Waku1la County School Board.
On August 15, 1976, HRS commenced crediting Braun's annual leave account with five hours of annual leave per bi- weekly pay period.
Braun had five years of continuous service as an HRS employee on December 17, 1978, some 61 bi-weekly pay periods after August 15, 1976.
Chapter 22A-8 was revised by respondent Department of Administration (DOA) and, as revised, governed attendance and leave for career service employees of the State of Florida through April 30, 1979. Rules 22A-8.07, 8.08 and 8.10 permitted leave to be accrued only by employees of the state on the state payroll. Those rules also provided that an employee was entitled to only four hours of annual leave credit per bi-weekly pay period until that employee reached five years of continuous service, at which time he would begin to receive five hours of annual leave credit per bi-weekly pay period.
As a result of an audit performed by HRS in 1983, it was determined that between 1973 and the date of the audit Braun had been credited with: 64 hours of annual leave from the time when he was not a state employee but was employed by the Wakulla County School Board; and an extra 61 hours by accruing leave at the rate of five instead of four hours per bi-weekly pay periods between August 15, 1976 and December 17, 1978. HRS reduced Braun's leave balance by 125 hours, from 237 hours of credited annual leave to 108 hours of credited annual leave. Braun's leave balance as of the present time is 167 hours of annual leave.
Braun requested that HRS re-credit his account with the 125 hours of annual leave which were deducted as a result of the audit. On DOA's advice, HRS refused to re-credit Braun's annual leave account.
CONCLUSIONS OF LAW
Under Section 110.219(4), Florida Statutes (1983), HRS has the "ultimate responsibility for the accuracy and proper maintenance of all attendance and leave records" pertaining to Braun. It therefore has final order authority in this case.
Upon his employment with HRS, Braun was not entitled to have 64 hours of annual leave earned with a non-state employer credited to his annual leave account pursuant to Chapter 22A-8, Florida Administrative Code, as it stood at that time and as it stands today. Braun was incorrectly credited with 64 hours of annual leave upon commencement of employment with HRS on December 17, 1973.
Braun was not entitled to a credit of 5 hours of annual leave for each bi-weekly pay period until December 17, 1978. It was that date upon which Braun achieved 5 years of continuous service so as to entitle him to 5 hours of annual leave per bi-weekly pay period, rather than 4 hours, pursuant to Chapter 22A-8, Florida Administrative Code. Braun was incorrectly credited with 61 hours of annual leave which were not due him between August 15, 1976 and December 17, 1978.
Under Chapter 22A-8, Florida Administrative Code, Braun's annual leave balance should have been 108 hours as of the time of the audit.
Chapter 95, Florida Statutes, does not operate to bar the ability of HRS to correct his annual leave balance to remove the 125 hours incorrectly credited to his leave balance. Chapter 95 does not apply to actions taken by administrative agencies, even quasi-adjudicatory actions. Canney v. Board of Public Instruction, 278 So.2d 260 (Fla. 1973); Fahrzad v. Department of Professional Regulation, 443 So.2d 373 (Fla. 1st DCA 1983).
Rule 22K-10.04(3), Florida Administrative Code, limits the state's actions to correct overpayments to a two (2) year period immediately following the date of payment.
Rule 22K-10.O3, Florida Administrative Code, defines an overpayment to which the chapter is applicable:
"Compensation which is greater than the maximum authorized for payment in conformity with provisions of the Personnel Rules and Regulation of the Career Service System (22A, F.A.C.), Sections 216.251 and 110.205(2),
Florida Statutes, or specific legislative or Department of Administration approval."
The Rule 22K-10.03 definition of the term "compensation" is ambiguous. But the title of the chapter is "Salary Overpayments and Underpayments." That title is consistent with the statutes cited as "law implemented" in each of the rules comprising Chapter 22K-10: Sections 110.205(2), 110.209(1) and 216.251, Florida Statutes. Section 110.205, Florida Statutes, creates the Career Service System. Section 110.209 directs that the Department of Administration shall establish and maintain an equitable pay plan assigning appropriate salary ranges to each class of positions within the pay plan. Section 216.251, Florida Statutes, creates the authorization for payment of annual salaries to officers and employees of the State of Florida.
Section (4) of Rule 22K-10.03, Florida Administrative Code, provides that all terms not defined in the rule "shall have the meanings as defined in Section 216.011, Florida Statutes." Section 216.O11(1)(g), Florida Statutes (1983), defines "salary" as "cash compensation for services rendered for a specific period of time." See also Section 216.011(1)(n), Florida Statutes (1981). Accordingly, Chapter 22K-10, Florida Administrative Code, refers to overpayment of salary (cash compensation) for services rendered by an employee for a specific period.
Accrual and holding of unused annual leave does not constitute cash compensation for services rendered for a specific period of time. Had Braun utilized the claimed 64 hours of annual leave at his salary rate upon first employment with HRS, he would have been remunerated at his annual salary rate at the time, approximately $11,400 per year. However, if he had used that leave during 1983, he would have been compensated during the period of that leave at his current salary rate, approximately $20,600 per year. Leave, in and of itself, does not constitute cash compensation; rather, leave is available for use upon approval by the employing agency.
When annual leave is authorized for use, the employee is paid cash compensation during the period of time of authorized leave. Rule 22A- 8.10(2)(b), Florida Administrative Code.
But Braun did not prove that he has used any annual leave or, if he has, when the leave was used. Because of the nature of leave accounts, it may in any event have been impossible for Braun to prove that any leave he did use was the "oldest" leave on his leave account balance (or, at least, "older" than two years before the HRS audit in 1983). Therefore, he did not prove that the correction of his leave account balance by HRS was barred by Rule 22K-10.03(4), Florida Administrative Code.
Finally, the following decisions are noted: Gay v. Inter-County Telephone and Telegraph Company, 60 So.2d 22 (Fla. 1952); Heidt v. Caldwell, 41 So.2d 303 (Fla. 1949); United States v. City of Palm Beach Gardens, 635 F.2d 337 (5th Cir. 1981). All stand for the proposition that a statute of limitations should not be construed to apply to bar the claims or demands of the sovereign unless the sovereign explicitly directs otherwise. There would seem to be no reason why this rule should not apply to a "rule of limitations" promulgated by the executive branch of the sovereign. In light of the problem of proof of Braun's defense in this case, it might be reasonable to conclude that the DOA did not intend for Rule 22K-10.03(4), Florida Administrative Code, to preclude it from adjusting annual leave account balances at any time.
Braun's contention that his leave account balance is "personal property" adds nothing to the analysis of whether Chapter 95, Florida Statutes, applies or whether Rule 22K-IO, Florida Administrative Code, bars the correct calculation of his leave balance. Leave is not "personal property" in the sense that it is his to utilize and do with as he will. Chapter 22A-8, Florida Administrative Code, as it stood at the time of his employment in 1973 and as it stands today, requires an agency head to authorize the use of leave before it may be utilized by an employee. Nothing in Chapter 22A-8, Florida Administrative Code, requires the approved use of annual leave, and unused leave balances in excess of 240 hours are removed from the employee's leave balance by operation of Rule 22A-8.10(1)(g).
Annual leave could only be considered "property" of some sort if actually earned in and during the course of state employment. The 64 hours credited to Braun's account upon commencing employment were not earned in accordance with Chapter 22A-8, Florida Administrative Code. They were incorrectly credited. Likewise, the additional one hour increments (the difference between 4 hours per bi-weekly pay period and 5 hours per bi-weekly pay period) were not earned in accordance with Chapter 22A-8, Florida Administrative Code, but rather were improperly credited to Braun's account between August 15, 1976 and December 17, 1978.
There is no occasion for the application of the doctrines of estoppel or laches to prevent recalculation of Braun's annual leave account balance. Under Chapter 22A-8, Florida Administrative Code, Braun was not entitled to the
64 hours of annual balance credited to him upon commencement of employment under Chapter 22A-8, Florida Administrative Code. Nor was Braun entitled the additional one hour of annual leave credited to his balance between August 15, 1976 and December 17, 1978. A mistake of law made by an agent or employee of the State of Florida will not estop the State of Florida from asserting the correct rule of law when an error is discovered. See Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA 1979); Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977). In addition, this record demonstrates no detrimental reliance on the crediting of such leave to Braun's account. Finally, HRS' delay has not
prejudiced Braun in his defense against the reduction of his leave balance as required for laches to apply. Cf. 35 FLA. JUR. 2d Limitations and Laches 391 (1982). Indeed, Braun concedes the correctness of the reduction under the Chapter 22A-8, Florida Administrative Code.
RECOMMENDATION
Based on the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that:
Respondent Department of Health and Rehabilitative Services enter a final order correcting the annual leave account of Robert J. Braun by reducing his annual leave balance by 125 hours in accordance with its 1983 audit of the account.
RECOMMENDED this 21st day of January, 1985 in Tallahassee, Florida.
J. LAWRENCE JOHNSTON 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 21st day of January, 1985.
ENDNOTES
1/ Braun's petition seeks redress by re-calculation to increase his annual leave balance to restore hours HRS previously eliminated as a result of a 1983 audit. But HRS never gave Braun a clear point of entry to challenge the previous reduction. The technically proper issue is therefore the propriety of the previous reduction.
Braun does seek affirmative relief, requesting that HRS carry forward into calendar year 1985 all annual leave without regard to the 240 hour limitation of Rule 22A-8.10(1)(g), Florida Administrative Code. But to that extent the petition essentially seeks to challenge the validity of the rule. A rule can be challenged on appeal from a 120.57 proceeding, but not in the proceeding itself. In this proceeding, the rule must be presumed valid, and Braun's additional request for relief must be denied.
2/ Both parties submitted proposed findings of fact. The proposed findings of fact were reviewed, and the following Findings Of Fact attempt to rule, either directly or indirectly, on each proposed finding of fact. Proposed findings of fact which were approved and adopted are reflected in the following Findings Of Fact. Where proposed findings of fact are not reflected and no direct ruling rejecting them is apparent, the proposed findings of fact have been rejected as being subordinate, cumulative, immaterial or unnecessary.
COPIES FURNISHED:
Robert J. Braun
1726 Beechwood Circle, North Tallahassee, Florida 32301
Daniel C. Brown, Esquire General Counsel
Department of Administration
435 Carlton Building Tallahassee, Florida 32301
Harden King, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32301
David H. Pingree, Secretary Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32301
Docket for Case No: 84-003688
Orders for Case No: 84-003688
| Issue Date |
Document |
Summary |
|
Feb. 18, 1985 |
Agency Final Order
|
|
|
Jan. 21, 1985 |
Recommended Order
|
State worker was credited with too much leave time. Neither limitation, laches nor estoppel bar corrected account despite time. No credits used.
|
