STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

vs. ) CASE No. 91-6197

)

ANNIE L. ALLEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above styled case on December 18, 1991, in Tampa, Florida.

APPEARANCES

For Petitioner: Jack E. Farley, Esquire

HRS District VI Legal Counsel Room 500 - Fifth Floor

4000 West Dr. Martin Luther King Jr. Boulevard

Tampa, Florida 33614

For Respondent: Annie L. Allen, pro se

6420 North 23rd Street Tampa, Florida 33610

STATEMENT OF THE ISSUES

Whether Respondent must repay $558.74 for alleged salary overpayment for the period between December 14, 1990 and April 26, 1991.

PRELIMINARY STATEMENT

In a letter dated July 22, 1991, Petitioner, Department of Health and Rehabilitative Services (the Department), claimed Respondent, Annie L. Allen (Allen), had been overpaid salary in the amount of $558.74 between December 14, 1990 and April 26, 1991. To resolve the matter, the Department requested either repayment within twenty-one days or Respondent's submission of a written request for a repayment plan. Respondent contested the Department's findings and requested a formal hearing to resolve disputed issues of material fact.

The case was referred to the Division of Administrative Hearings on September 25, 1991, and final hearing was held on December 18,1991. During the hearing, the parties orally entered into seven stipulations of fact. These agreed upon facts are set forth in this Recommended Order. The Department filed seven exhibits that were admitted into evidence. Exhibits #2 and #3 are jointly filed exhibits, as noted on the documents. One witness was presented by the Department, and Respondent testified in her own behalf.

A transcript of the proceedings was not ordered. Proposed findings of fact were timely submitted by Respondent. The Department relied on the factual stipulations made at hearing. Legal argument and recommended conclusions of law were submitted to accompany those stipulations. Rulings on the proposed findings filed by Respondent are in the attached Appendix.

FACTUAL STIPULATIONS

1. From June 1, 1990 to December 14, 1990, Respondent Annie L. Allen was working "Out of Title."

   
   

2. From June 1, 1990 to April 12, 1991, Respondent was a career service worker employed as a Public Assistance Specialist I. On April 12, 1991, Respondent became a Public Assistance Specialist II. This was her actual permanent classification.

   
   

3. Prior to December 14, 1990, Larry Lumpan, Operational Program Administrator, advised Respondent that her supervisor, Amelia Patterson, would be back to work as supervisor on December 14, 1990. Ms. Patterson did return to work on that date.

   
   

4. From December 14, 1990 to March 20, 1991, Ms. Patterson remained out of work on Mondays.

   
   

5. On April 30, 1991, Respondent received the Report of Personnel Action dated April 29, 1991, that removed her "Out of Title" pay effective retroactively to December 14, 1990.

   
   

6. When Respondent received the aforementioned Report of Personnel Action, this was the first time she became aware that the Department was saying she was no longer doing "Out of Title" work.

   
   

7. Respondent committed no malfeasance or misfeasance regarding overpayment.

FINDINGS OF FACT

1. At all times material to these proceedings, Respondent Allen was a career service employee with the Department who was subject to the collective bargaining agreement.

   
   

2. Respondent was designated as the Public Assistance Specialist I who would act in a supervisory capacity during her unit supervisor's maternity leave. Respondent accepted the temporary appointment and received a higher rate of pay from the Department during the time she was filling the position, in accordance with the collective bargaining agreement.

   
   

3. Pursuant to the collective bargaining agreement, a career service employee who performs the duties of a higher level position for a period of time more than twenty-two workdays within any six consecutive months, is eligible to receive a promotional pay increase. This pay increase should be granted in accordance with the Personnel Rules of the Career Service System, beginning with the twenty-third day. This type of temporary appointment is referred to within the Career Service System as "Out of Title" work, and is located in Article 21 of the agreement.

4. Employees being paid at a higher rate while temporarily filling a position in a higher classification are returned to their regular rate of pay when the period of employment in the higher class is ended.

   
   

5. Originally, Respondent's "Out of Title" status and increased pay were to be effective from June 1, 1990 until the supervisor returned from maternity leave. This time period began on June 1, 1990 and ended in some respects on December 14, 1990. The supervisor returned to work on a four-day basis, Tuesdays through Thursdays, for an additional three month period.

   
   

6. Due to some special needs of the supervisor related to the birth of her child, the Department allowed her to continue to remain at home on Mondays after she was originally due back to work from maternity leave. This arrangement continued from December 14, 1990 to March 20, 1991.

   
   

7. During these Mondays, Respondent continued to actively perform the duties of the higher level supervisory position for eleven consecutive weeks. In addition, Respondent acted as the unit supervisor during all other days her supervisor was unavailable for work. These additional days, however, were not arranged for in advance by the supervisor before returning to work from maternity leave, as were the consecutive Mondays.

   
   

8. On April 29,1991, a Report of Personnel Action from the Department transferred Respondent from her higher "Out of Title" pay and status to her permanent position as a Public Assistance Specialist II [a promotion received April 12, 1991]. The effective date of the action was made retroactive to December 14, 1990, the day the supervisor on maternity leave returned to her job on a four-day a week basis.

   
   

9. Prior to her receipt of the Report of Personnel Action on April 30, 1991, Respondent was unaware that her "Out of Title" job duties and the commensurate pay increase ceased on December 14, 1990. She had been performing supervisory duties on Mondays after that date under the belief that an overlap in position was permitted to assist the supervisor with her temporary special needs involved with childbirth and the baby's care.

   
   

10. Respondent was not advised of the amount of the overpayment of salary the Department contends she received between December 14, 1990 and April 26, 1991, until July 25, 1991.

    
    

11. The original amount of the salary overpayment the Department sought to recover from Respondent was $558.74. After the parties stipulated that Respondent performed supervisory functions on the eleven scheduled Mondays, the Department reduced its claim for overpayment to reflect a higher salary for Respondent on those dates. This reduced the claim for overpayment by $65.03, thus making the Department's total claim $493.71.

    
    

    CONCLUSIONS OF LAW

    
    

12. A pivotal issue in these proceedings is whether the Division of Administrative Hearings has jurisdiction over the parties and the subject matter based upon the unique facts and the particular salary overpayment dispute involved in this case.

    
    

13. Ordinarily, when there is no question that a salary overpayment to an employee occurred as a result of an administrative or clerical error, the Department is responsible for making a diligent, reasonable and prudent effort

    to collect the exact amount of overpayment. Rule 3A-31.309, Florida Administrative Code. Under such circumstances, the proper forum for review of the Department's request for repayment is an administrative hearing under Section 120.57, Florida Statutes. Department of Corrections v. Career Service Commission, 429 So.2d 1244 (Fla. 1st DCA 1983).

    
    

14. When the Department decided in April 1991, that Respondent had been overpaid since December 14, 1990, two major presuppositions occurred. First, the agency assumed the actual supervisor's return to work on December 14, 1990 closed the question of Respondent's entitlement to the higher salary. Second, it was further assumed that Respondent's performance of supervisory duties terminated on the supervisor's return date. Based upon these postulations, the Department concluded salary overpayment to Respondent was the sole result of administrative or clerical error. Thus, Respondent was advised in good faith by the Department that her only recourse for review of the controversy was an administrative hearing.

    
    

15. Evidence presented at hearing revealed that the Department was deficient in its discernment of the situation. The case contains additional underlying factual disputes which must be resolved before the administrative or clerical error issue can addressed. These factual disputes are: 1) Whether the actual supervisor's approved absences on Mondays for an additional three months after her return from maternity leave was a continuation of the original leave which caused an overlap in position with Respondent under Rule 22A-2.013, Florida Administrative Code; 2) Whether Respondent's continued performance of duties in the higher classification on those Mondays meets the definition of "Out of Title" work in Article 21 of the collective bargaining agreement; 3) Whether Respondent's continued performance of supervisory duties and the lack of timely notification of her change in "Out of Title" status operated as an overlap in position.

    
    

16. It is clear that the outcome of these factual disputes affect the question of overpayment. Therefore, the Department cannot continue to claim this is a single issue case with an administrative hearing under 120.57, Florida Statutes as the proper forum for review of the agency's repayment decision.

    
    

17. Respondent Allen is a career service employee who is subject to the collective bargaining agreement. Because she continued to act as the unit supervisor for eleven additional Mondays after her supervisor returned for four- day work weeks from maternity leave, an interpretation of Article 21 of the collective bargaining agreement is necessary to assist in the resolution of the overpayment controversy. The following provisions of the agreement under Article 21(A) and (D) are at issue:

    
    

    1. Each time an employee is designated by the employee's immediate supervisor to act in a vacant established position in a higher classification than the employee's permanent

       classification, and actually performs a major portion of the duties of the higher level position, irrespective of whether the higher level is funded, for a period of time more than twenty-two (22) workdays within any six

       1. consecutive months, the employee shall be eligible to receive a promotional pay increase in accordance with the Personnel

          Rules of the Career Service System, beginning with the 23rd day.

          
          

          * * *

          
          

          1. Employees being paid at a higher rate while temporarily filling a position in a higher classification will be returned to their regular rate of pay when the period of temporary employment in the higher class is ended.

       
       

18. The Legislature has established specific procedures which must be used by a public employer and a public employee when a dispute arises involving the interpretation or application of a collective bargaining agreement. Section 447.401, Florida Statutes, provides as follows, in pertinent part:

    
    

    Each public employee and bargaining agent shall negotiate a grievance procedure to be used for the settlement of disputes between employer and employee, or group of employees, involving the interpretation or application of a collective bargaining agreement. Such grievance procedure shall have as its terminal step a final and binding disposition by an impartial neutral, mutually selected by the parties; . . . However, an arbiter or other neutral shall not have the power to add to, subtract from, modify, or alter the terms of the collective bargaining agreement. . .

    A career service employee shall have the option of utilizing the civil service appeal procedure, an unfair labor practice procedure, or a grievance procedure established under this section, but such employee is precluded from availing himself to more than one of these procedures.

    
    

19. Respondent, a career service employee, was not given the option to select one of the three procedures listed in the aforementioned statute. Instead, she was required by the agency to contest its decision in a fourth forum, the Division of Administrative Hearings, during a Section 120.57 hearing. In this forum, the law allows the Department to have final order authority in a Section 120.57 hearing. This opportunity was not granted to governmental agencies under the separate statutory scheme established by the Legislature for the settlement of these types of disputes between public employers and employees. The final and binding disposition has to be decided by an impartial neutral entity.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

1. Respondent is to be notified by the Department of the grievance procedures that can be used for the settlement of this dispute between employer

   and employee, along with the time deadline she has to elect the procedure to be used for the dispute resolution.

   
   

2. The pending case is to be dismissed for lack of subject matter jurisdiction, and transferred to the correct forum timely elected by Respondent, without prejudice to either party.

DONE and ENTERED this 27 day of January, 1992, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

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 day of January, 1992.

APPENDIX TO RECOMMENDED ORDER IN CASE No. 91-6197

Respondent's Recommendation of Facts are addressed as follows:

1. Rejected. Whether overpayment occurred needs to be resolved in a different forum, based on one or more of the following: an interpretation of the collective bargaining agreement; an interpretation of an overlap in position in this case; or an unfair labor practice.

   
   

2. Accepted. See Finding of Fact #8 and Factual Stipulation #5.

   
   

3. Rejected. Contrary to law. See Rue 3A-31.309(1)(d), Florida Administrative Code, Chapter 17, Florida Statutes.

   
   

4. Accepted. See Factual Stipulation #7.

COPIES FURNISHED:

Jack Emory Farley Esq

HRS District VI Legal Office Room 500 - Fifth Floor

4000 W Dr Martin Luther King Jr Blvd Tampa Fl 33614

Annie L Allen 6420 N 23rd St

Tampa Fl 33610

John Slye Esq General Counsel

Dept of Health and Rehabilitative Services 1323 Winewood Blvd

Tallahassee Fl 32399 0700

Sam Power Agency Clerk

Dept of Health and Rehabilitative Services 1323 Winewood Blvd

Tallahassee Fl 32399 0700

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. Some agencies allow a larger period within 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: 91-006197

Orders for Case No: 91-006197