STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUBY BUSH, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7044

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on March 12, 1991. Respondent, but not petitioner, filed a proposed recommended order.

The attached appendix addresses proposed findings of fact by number.

APPEARANCES

For Petitioner: Ruby Bush, Pro se

For Respondent: Robert L. Powell, Esquire

1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700 STATEMENT OF THE ISSUE

Whether respondent recovered too much money when it docked petitioner for leave without pay she took between January 5, 1989 and November 11, 1990?

PRELIMINARY STATEMENT

Although in apparent agreement that Ms. Bush was overpaid and that recovery of the overpayment was in order, the parties were unable to agree on the precise amount. Eventually, she requested a formal administrative hearing and the matter was referred to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989).

FINDINGS OF FACT

1. For calendar year 1989 and until November 11, 1990, petitioner worked for respondent. As of January 5, 1989, having exhausted accumulated leave balances, petitioner was not entitled either to sick leave or to annual leave.

   
   

2. After January 5, 1989, and until her employment with respondent ended on November 11, 1990, petitioner earned 192 hours of sick leave and 192 hours of annual leave.

3. During the pay period ended January 19, 1989, she took 1.75 hours of leave. During the pay period ended February 2, 1989, she took 3.5 hours of leave. During the pay period ended February 16, 1989, she took 1.5 hours of leave.

   
   

4. During the pay period ended March 2, 1989, she took 18.25 hours of leave. During the pay period ended March 16, 1989, she took 16 hours of leave. During the pay period ended March 30, 1989, she took 1.5 hours of leave. During the pay period ended April 13, 1989, she took 36 hours of leave. During the pay period ended April 27, 1989, she took 22 hours of leave.

   
   

5. During the pay period ended May 11, 1989, she took 20.75 hours of leave. During the pay period ended May 25, 1989, she took 6 hours of leave. During the pay period ended June 8, 1989, she took 8.75 hours of leave. During the pay period ended June 22, 1989, she took 17.25 hours of leave.

   
   

6. During the pay period ended July 6, 1989, she took 16 hours of leave. During the pay period ended July 20, 1989, she took 1 hour of leave. During the pay period ended August 3, 1989, she took 9 hours of leave. During the pay period ended August 17, 1989, she took 10 hours of leave. During the pay period ended August 31, 1989, she took 4 hours of leave.

   
   

7. During the pay period ended September 14, 1989, she took 12 hours of leave. During the pay period ended September 28, 1989, she took 8.5 hours of leave. During the pay period ended October 12, 1989, she took 10.5 hours of leave. During the pay period ended October 26, 1989, she took 8.5 hours of leave.

   
   

8. During the pay period ended November 9, 1989, she took 26.25 hours of leave. During the pay period ended November 23, 1989, she took one hour of leave. During the pay period ended December 7, 1989, there was no leave taken. During the pay period ended December 21, 1989, she took .5 hours of leave.

   
   

9. During the pay period ended January 4, 1990, she took 18 hours of leave. During the pay period ended January 18, 1990, she took 10.5 hours of leave. During the pay period ended February 1, 1990, she took 1.5 hours of leave. During the pay period ended February 15, 1990, she took 1.5 hours of leave.

   
   

10. During the pay period ended March 1, 1990, she took 3 hours of leave. During the pay period ended March 15, 1990, she took 27 hours of leave. During the pay period ended March 29, 1990, she took 11.5 hours of leave. During the pay period ended April 12, 1990, she took 36 hours of leave. During the pay period ended April 26, 1990, she took 24 hours of leave.

    
    

11. During the pay period ended May 10, 1990, she took 34.25 hours of leave. During the pay period ended May 24, 1990, she took .5 hours of leave. During the pay period ended June 7, 1990, she took 2 hours of leave. During the pay period ended June 21, 1990, she took 27.5 hours of leave. During the pay period ended July 5, 1990, there was no leave taken. During the pay period ended July 19, 1990, she took 8 hours of leave.

    
    

12. During the pay period ended August 2, 1990, she took 26 hours of leave. During the pay period ended August 16, 1990, she took 31 hours of leave. During the pay period ended August 30, 1990, she took 8 hours of leave.

13. During the pay period ended September 13, 1990, she took 16 hours of leave. During the pay period ended September 27, 1990, she took 24.5 hours of leave. During the pay period ended October 11, 1990, she took 13.25 hours of leave.

    
    

14. Because petitioner's time sheets were not always processed in a timely manner, leave balances stated on contemporaneous print outs were not always accurate. (In 1989, respondent had no official mechanism for notifying employees that time sheets were missing.) After petitioner's situation came to the attention of payroll specialists at HRS, a manual audit was performed.

    
    

15. For the period ending March 30, 1989, petitioner had an annual leave balance of 6.5 hours. During the next pay period, she used the entire balance, but at the end of the pay period, at the close of business on April 13, 1989, four more hours of annual leave were credited, all of which she used before the succeeding period ended. During the period ended May 25, 1989, she was also out on leave two hours for which she was not entitled to pay.

    
    

16. In all, the audit established that respondent had taken some 563 hours of leave after January 5, 1989. This exceeded paid leave she was entitled to by

    179 hours. Nothing in the evidence suggests she was docked for more than 135.25 hours' pay.

    
    

    CONCLUSIONS OF LAW

    
    

17. Since HRS referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1989). Questions regarding recovery of salary overpayment do not fall within the jurisdiction of the Career Service Commission. Department of Corrections v. Career Service Commission, 429 So.2d 1244 (1983).

    
    

18. Petitioner has not called into question the propriety of the mechanism by which respondent has recovered what it claims was overpaid. See Rule 3A- 31.309, Florida Administrative Code. Petitioner contends only that too much was recovered. The evidence fails to support this contention, however, and established, if anything, that respondent failed to recover the full amount of the overpayment.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That respondent deny petitioner's request for refund.

DONE and ENTERED this 19th day of April, 1991, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1991.

COPIES FURNISHED:

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Linda Harris, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Robert L. Powell, Esquire Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700

Ruby Bush

3111-21 Mahan Drive, #113

Tallahassee, FL 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-007044

Orders for Case No: 90-007044