STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2200

)

WILLIAM DUNN, )

)

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 May 20, 1992, in Tampa, Florida.

APPEARANCES

For Petitioner: Jack E. Farley, Esquire

HRS District VI Legal Office 4000 W. Dr. Martin Luther

King Jr. Boulevard Tampa, Florida 33614

For Respondent: William Dunn, pro se

9717 Fox Hollow Road Tampa, Florida 33647

STATEMENT OF THE ISSUES

Whether the Respondent was overpaid in the amount of $129.29 while he was employed by the Department of Health and Rehabilitative Services.

PRELIMINARY STATEMENT

By letter dated January 2, 1992, the Petitioner, Department of Health and Rehabilitative Services (the Department), advised Respondent, William Dunn (Dunn), that a salary overpayment of $129.29 occurred in the pay period August 3, 1990 to August 16, 1990, during his employment with the agency. This error was discovered during a routine leave audit that was completed after Respondent Dunn transferred employment to another agency. In reply, the Respondent promptly requested a formal hearing.

The case was referred to the Division of Administrative Hearings on April 8, 1992, where it was assigned to Hearing Officer J. Lawrence Johnston. Prior to hearing, the case was administratively reassigned to Hearing Officer Veronica

E. Donnelly to reduce travel expenses for the Division in the Tampa area.

During the hearing, the Department presented one witness and filed three exhibits. Respondent Dunn testified in his own behalf and submitted three exhibits. All of the exhibits were admitted into evidence.

A transcript of the proceeding was not ordered. The Department did not submit a proposed recommended order. Proposed findings of fact were promptly filed by the Respondent. Rulings on these proposed findings are in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent Dunn was initially employed in a Career Service position by the State of Florida on December 14, 1984. He remained in that position until August 7, 1986, when he separated from state government.

   
   

2. On April 13, 1987, the Respondent accepted a position within the Career Service System with the Petitioner, Department of Health and Rehabilitative Services. The position was paid through a biweekly payroll system. The earning of annual leave and sick leave credits was also accounted for on a biweekly basis.

   
   

3. Due to his eight-month break in service, Respondent was not entitled to credit for the previous state service when his annual leave earnings were credited to his leave account during his first year with the Department.

   
   

4. On April 3, 1988, Respondent was continuously employed by the Petitioner for one full year. Within the Career Service System, this date is referred to as a career service employee's continuous creditable service date. When a reemployed career service worker completes continuous employment for one year following the date of his reemployment, he is entitled to credit all previous state service when eligibility for higher annual leave credits is computed by the employing agency and credited to his leave account.

   
   

5. After five years of continuous and creditable service, a career service employee earns a higher rate of annual leave hours during a biweekly period.

   The number of annual leave hours earned and credited changes from four hours biweekly to five hours biweekly.

   
   

6. Respondent Dunn became eligible for the five hour annual leave credit during the biweekly pay period that began on August 3, 1990.

   
   

7. Respondent's supervisor mistakenly began crediting him with annual leave at the rate of five hours each biweekly pay period starting with the pay period beginning December 8, 1989.

   
   

8. If Respondent had not had a break in continuous service, the supervisor's calculations as to annual leave hour credits would have been correct. His leave was calculated on continuous service instead of continuous and creditable service, as required by the Personnel Rules and Regulations of the Career Service System.

   
   

9. Petitioner and Respondent relied upon the records maintained by the supervisor to determine how much annual leave the Respondent had accumulated and when he would be able to take such leave.

   
   

10. During the biweekly pay period of August 3, 1990 through August 16, 1990, Respondent used thirty-six hours of annual leave under the mistaken belief

    that he was entitled to use that many hours of leave during that pay period. Permission to take this leave was given by his supervisor.

    
    

11. If the leave had been properly calculated during the time period from December 12, 1989 to August 2, 1990, Respondent's total accumulated annual leave would have been only twenty-two hours.

    
    

12. Respondent received a paycheck during this time period that give him credit for thirty-six hours of annual leave. This resulted in a salary overpayment of $129.29 as fourteen of those annual leave hours were not earned.

    
    

13. The agency's calculation error as to Respondent's accumulated annual leave and the subsequent salary overpayment were discovered by Petitioner during the routine annual leave audit conducted when Respondent moved from his Career Service position with Petitioner to a Career Service position with the Department of Environmental Regulation. The amount of salary overpayment was reviewed and confirmed by the Division of Banking and Finance, Bureau of State payrolls once it was discovered by Petitioner.

    
    

14. Action was taken by the Petitioner to correct the overpayment on January 2, 1992. This was within the two year period immediately following the date of payment.

    
    

15. The salary overpayment to Respondent was the result of an administrative or clerical oversight. Petitioner's attempt to recover the funds was neither a disciplinary action nor an attempt to punish Respondent for moving to another agency.

    
    

16. Respondent conducted himself lawfully during his employment with Petitioner in all matters relating to annual leave. The blame for the error in the calculation of accumulated annual leave should not be imputed to Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over parties and the subject matter pursuant to Section 120.57(1), Florida Statutes. Department of Corrections v. Career Service Commission, 429 So.2d 1244 (Fla. 1st DCA 1983).

    
    

18. Section 110.219, Florida Statutes [1989], announces the general policies relating to attendance and leave for employees in the Career Service System. The statute provides as follows, in pertinent part:

    
    

    1. Each agency shall keep an accurate record of all hours of work performed by an employee, as well as a complete and accurate record of all authorized leave which is approved. The ultimate responsibility for the accuracy and proper maintenance of all attendance and leave records shall be with the agency head.

    2. Rules shall be adopted by the department

       to implement the provisions of this section... .

       Such rules shall provide for, but shall not be limited to:

       * * *

       (c) Creditable service in which an employee

       is on the payroll of a state agency or during which the employee is on authorized leave without pay.

       * * *

       (f) Annual leave provisions.

       
       

19. The rules and regulations governing the attendance and leave of employees in the Career Service are set forth in Chapters 22A-8, Florida Administrative Code. The use of earned annual leave is regulated by Rule 22A- 8.010(2), which states as follows, in pertinent part:

    
    

    Use of annual leave shall not be authorized prior to the time it is earned and credited to the employee.

    
    

20. In this case, the fourteen additional hours of annual leave Respondent took during the biweekly pay period of August 3, 1990 through August 16 1990 were not lawfully authorized because it was not yet earned. As a result, the pay Respondent mistakenly received for those fourteen unearned annual leave hours was a salary overpayment.

    
    

21. Section 110.209(1), Florida Statutes, provides that the Department of Administration shall establish and maintain an equitable pay system which shall be applicable to all positions in the Career Service System.

    
    

22. The Personnel Rules and Regulations of the Career Service System state that all employees shall be paid in accordance with the rates shown in the Official Salary Schedule and the provisions of Chapter 22A-2, Florida Administrative Code.

    
    

23. When an overpayment occurs, the agency head and the employee must follow the policy on salary overpayments announced in Rule 22K-10.004, Florida Administrative Code, which provides as follows, in pertinent part:

    
    

    1. When an employee receives an overpayment, the exact amount of the overpayment shall be reclaimed from the employee or former employee,

       ... in accordance with the provisions of these rules... .

    2. Actions taken by the state to correct ...

    overpayments provided for in this rule will be limited to a two-year period immediately fol- lowing the date of payment.

    
    

24. Based upon these rules, which must be applied uniformly to all Career Service employees, the Petitioner acted correctly when it became aware of the overpayment situation.

    
    

25. In accordance with Section 17.04, Florida Statutes, only the Department of Banking and Finance shall establish the amount of refund due to the State and the manner of its recovery in a salary overpayment and refund situation. Rule 3A-31.309, Florida Administrative Code. The Department properly had the salary overpayment reviewed and the collection of refund authorized by the Department of Banking and Finance.

RECOMMENDATION

Based upon the foregoing, it is recommended Respondent Dunn should refund

$129.29 to the Petitioner for the salary overpayment that occurred in the biweekly pay period that began on August 3, 1990.

RECOMMENDED this 23rd day of June, 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 23rd day of June, 1992.

COPIES FURNISHED:

JACK E FARLEY ESQ

HRS - DISTRICT VI LEGAL OFFICE 4000 W DR MARTIN LUTHER

KING JR BLVD TAMPA FL 33614

WILLIAM DUNN

9717 FOX HOLLOW RD TAMPA FL 33647

RICHARD S POWER AGENCY CLERK

DEPT OF HEALTH AND REHABILITATIVE SERVICES

1323 WINEWOOD BLVD

TALLAHASSEE FL 32399 0700

JOHN SLYE ESQ/GENERAL COUNSEL 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: 92-002200

Orders for Case No: 92-002200