STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KAREN C. GREENAWALT, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3839

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on December 7, 1989, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Karen C. Greenawalt, pro se

2922-1B Northwest 55th Avenue Fort Lauderdale, Florida 33133

For Respondent: Charles G. Gardner, Esquire

Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

Whether Petitioner was demoted, whether she received overpayments in salary from Respondent following her demotion, and whether Respondent is entitled to reimbursement of any overpayments.

PRELIMINARY STATEMENT

This case began when Respondent attempted to upgrade from pay grade 20 to pay grade 25 the position of Regional Toll Manager, the position in which Petitioner was employed. Respondent sought authorization from the Division of Administration (DOA) to increase the pay grade for the Regional Toll Manager's position and to create an Assistant Regional Toll Manager's position. DOA approved an increase in the Regional Toll Manager's position from pay grade 20 to pay grade 23 and, instead of creating a new position, assigned the duties that an Assistant Regional Toll Manager would have performed to the existing position in pay grade 21 entitled Operations and Management Consultant I. After the effective date of the increase in pay grade for the Regional Toll Manager's position, Petitioner, for reasons unrelated to her performance, was transferred to the position of Operations and Management Consultant I. Along with the transfer, Petitioner received an increase in her base salary. At the time it occurred, both Respondent and Petitioner viewed her transfer as a promotion.

DOA thereafter informed Respondent that Petitioner was not eligible for a salary increase because she had been technically demoted by being transferred from a position with more responsibility in pay grade 23 to a position with less responsibility in pay grade 21. DOA informed Respondent that Petitioner had been overpaid as a result of the increase in her base salary and instructed Respondent to seek repayment from Petitioner. Respondent followed DOA's instructions and demanded repayment from Petitioner. Petitioner contested the determination that she had been demoted and that she had been overpaid as a consequence of the alleged demotion. This proceeding followed Petitioner's request for a formal administrative hearing.

At the hearing, the parties stipulated that the burden of proof as to the fact of overpayment and the amount of overpayment was properly on Respondent. Respondent called one witness and introduced eight documentary exhibits which were accepted into evidence. Petitioner testified on her own behalf, but called no other witness and introduced no documentary evidence.

A transcript of the proceedings has been filed. Neither party submitted proposed findings of fact within the time established for the filing of post- hearing submittals.

FINDINGS OF FACT

1. Prior to May 3, 1988, Petitioner was employed by Respondent as a Regional Toll Manager and had achieved permanent status in the career service system.

   
   

2. In December 1987, Respondent requested that the Florida Department of Administration (DOA) upgrade the position of Regional Toll Manager from pay grade 20 to pay grade 25 and to create a new position of Assistant Regional Toll Manager.

   
   

3. Effective May 3, 1988, DOA granted Respondent's requests in part. The position of Regional Toll Manager was upgraded from pay grade 20 to pay grade

1. Instead of creating a new position, DOA assigned the duties that an Assistant Regional Toll Manager would have performed to an existing position entitled Operations and Management Consultant I. The Operations and Management Consultant I position was assigned to pay grade 21.

   
   

   1. DOA advised Respondent that no employee was to receive an increase in pay as a result of the change in pay grade for the Regional Toll Manager position unless the employee was not receiving the minimum pay for pay grade 23. Petitioner was being paid below the minimum for pay grade 23 and was entitled to an increase in pay as of May 3, 1988. Petitioner did not receive the pay increase to which she was entitled and was underpaid between May 3, 1988 and June 17, 1988.

      
      

   2. The Operations and Management Consultant I position has less responsibility than the Regional Toll Manager position.

      
      

   3. While Respondent was in the process of trying to upgrade the Regional Toll Manager position, it learned that the Legislature intended to exempt the position of Regional Toll Manager from the career service system. In anticipation of the Legislature's action, Respondent decided, after DOA's action on May 3, 1988, to assign all existing Regional Toll Managers to the position of Operations and Management Consultant I.

   4. Effective June 17, 1988, Petitioner and the other Regional Toll Managers throughout the State were transferred to the Operations and Management Consultant I position. Respondent intended to promote Petitioner from pay grade

      20 to pay grade 21. As of June 17, 1988, Petitioner received a pay increase that exceeded the minimum salary for pay grade 23.

      
      

   5. On September 7, 1988, DOA advised Respondent by letter that Petitioner had not been promoted from pay grade 20 to pay grade 21 on June 17, 1988. DOA's position was that Petitioner's pay grade had been automatically increased to pay grade 23 on May 3, 1988 and that Petitioner's transfer to a pay grade 21 position was, by definition, a demotion. DOA's letter advised Respondent that Petitioner's pay increase on June 17, 1988, violated pertinent provisions of the Florida Administrative Code and instructed Respondent to take corrective action. As of October 14, 1988, Respondent reversed the increases in pay that had gone into effect for Petitioner on June 17, 1988. All former Regional Toll Managers who had received an increase following his or her transfer to the Operations and Management Consultant I position were treated the same by DOA and by Respondent.

      
      

   6. On October 18, 1988, David S. Ferguson, Respondent's Personnel Officer, wrote a letter to Petitioner which explained the position that DOA had taken in this matter. Respondent advised Petitioner that, at DOA's instructions, it was reversing the pay increase that had gone into effect June 17, 1988, and that it would address the recovery issue with DOA and advise her after a response was received. On November 9, 1988, Mr. Ferguson wrote Petitioner a letter which clarified certain computations made in his letter to Petitioner dated October 18, 1988, and which advised Petitioner of the request Respondent was making of DOA in an effort to resolve the matter.

      
      

   7. On November 9, 1988, in a letter addressed to the Secretary of DOA, Mr. Ferguson requested that Petitioner and the other, similarly situated employees be granted a onetime lump sum increase in salary equivalent to the overpayments instead of requiring repayment from them. On December 29, 1988, DOA refused Respondent's request to resolve the matter through a onetime lump sum payment and repeated its instructions for Respondent to reclaim any overpayment.

      
      

   8. On May 17, 1989, Respondent advised Petitioner that DOA had refused its suggestion to resolve the matter and demanded repayment in the net amount of

      $122.61 as the overpayment received by Petitioner. The net amount owed was properly calculated by Respondent and made appropriate adjustments for the underpayments to Petitioner between May 3, 1988 and June 17, 1988. Petitioner was not prejudiced by the delay between December 29, 1988, the date DOA rejected Respondent's settlement proposal, and May 17, 1989, the date Respondent notified Petitioner of its intended final action, because the amount demanded by Respondent does not include interest or penalty.

      
      

   9. Respondent advised Petitioner that its letter of May 17, 1989, constituted notice of Respondent's intent to take final agency action. Thereafter, Petitioner made timely demand for a formal hearing of this matter and this proceeding followed.

      
      

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

   11. Section 110.201, Florida Statutes, provides, in pertinent part, as follows:

       
       

       1. The department (Department of Administration) shall develop and administer the establishment of uniform personnel rules, records, and reports relating to employees and positions in the career service.

          * * *

       2. Each employing agency shall operate within the uniform personnel rules promulgated by the department (Department of Administration) pursuant to the provisions of this chapter. ...

          
          

   12. Section 110.203(19), Florida Statutes, defines the term "demotion" as that term is used in dealing with the career service system personnel matters:

       
       

       (19) "Demotion" means moving an

       employee from a position in one class to a different position in another class having a lesser degree of responsibility and a lower maximum salary.

       
       

   13. Petitioner's reassignment on June 17, 1988, from the Regional Toll Manager position to the Operational and Management Consultant I position was a demotion as that term is defined by Section 110.203(19), Florida Statutes. Petitioner was reassigned to a position in a lower pay grade with less responsibility.

       
       

   14. Subsection 22A-2.004(3)(d), Florida Administrative Code, provides:

       
       

       (d) An employee who is given a demotion appointment shall not be granted an increase in base rate of pay as a result of being demoted.

       
       

   15. Respondent established that Petitioner received an overpayment in pay between June 17, 1988, and October 14, 1988. Respondent further established that the net amount of this overpayment, after all appropriate adjustments are made, is $122.61.

       
       

   16. Section 22K-10.005(2), Florida Administrative Code, provides, in pertinent part, as follows:

       
       

       (2) When an overpayment occurs, the agency head shall take the following action:

       * * *

       (b) Make arrangements with the employee to reclaim the amount of overpayment.

       
       

   17. Although Respondent intended to promote Petitioner at the time she was transferred to the Operations and Management Consultant I position, the transfer resulted in a technical demotion. Respondent's increase in Petitioner's base salary following the technical demotion was prohibited by rule

and resulted in Petitioner receiving overpayments. The rules adopted by the Department of Administration require Respondent to seek repayment of the net amount of the overpayments.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent enter a final order which finds that Petitioner has received overpayments in the net amount of $122.61 and which requires that Respondent make arrangements with Petitioner for the repayment of the sum of

$122.61 by payroll deduction or by other means agreeable to the parties.

DONE AND ENTERED this 12th day of January, 1990, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1990.

COPIES FURNISHED:

Karen C. Greenawalt, pro se 2922-1B Northwest 55th Avenue Fort Lauderdale, Florida 33133

Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Ben Watts, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Docket for Case No: 89-003839

Orders for Case No: 89-003839